PCBE: Transcripts (February 15, 2007)

Welcome to the twenty-eighth meeting of the President's Council on Bioethics. My first task always is to recognize our Designated Federal Official, Dan Davis, Executive Director of the Council, and his presence gives our meeting a governmental sanction, which we need.

As you can see, we have a very, very full agenda this time and much to accomplish. We hope, our hope is to bring to conclusion, if possible, and some sense of closure of our inquiry into the organ transplantation issue we've been looking at over the past several months. We need to come to some degree of closure on the range of policy questions and a number of other issues.

Now with the aid of setting the stage for today's session, the staff has prepared a series of papers, four papers, one for each of today's major sessions. These papers were intentionally brief and succinct, designed to advance our discussion without leaving anything of what we had discussed previously behind or excluded, but trying to bring us in focus for each of those papers.

The first paper does not do justice, nor was it intended to do so, to all the ways we have touched on the meaning of the body which is so fundamental in our consideration of something like organ transplantation where we interfere with the integrity of the body for reasons which some feel are quite debatable and others are justifiable. But all the papers are intended to get a discussion going and bringing discussion to each of those papers to some sense of closure. I keep using that word closure because we have been at this topic for a long time.

We're going to begin with a discussion of the body. There are no policy questions that are in play here, but it's important that we begin with a philosophical exchange on the meanings of the body. This has not often been addressed by people who have prepared reports on organ transplantation. And so it provides us a philosophical foundation for some of the ethical issues and pronouncements we might make.

We're then going to move on to allocation of organs, a very important practical consideration. We've had discussions about allocation in this group before, but we need to be a little more focused today and we will do so with respect to three questions that we'd like to look at particularly: the role that geography should play; age is a second issue; and then the question of calculations of net benefit in allocation.

Our third session is going to focus on proposals spawned by the aim of caring for the living donor and for the transplant recipients, the participants in the activity itself.

And on the fourth and final session, we'll focus on the shortage of organs and on three policy issues. On the ethics of pair donation and list donation, donation after controlled cardiac death and organ sales, a topic which engaged us toward the ending of our last meeting.

My hope is that in these sessions we will proceed to some sort of — and come to closure, be responsive to the concerns raised at the last meeting by the Council, and especially the need for a focused debate on some of the more contemporary ethical and policy questions of these ethical issues in contemporary medicine.

SESSION 1: ON THE BODY AND TRANSPLANTATION: PHILOSOPHICAL AND LEGAL CONTEXT

We will begin this first session this morning on the body and transplantation, a philosophical and legal context. We have asked two members of the Council who graciously agreed to open the discussion and therefore will be the focus and to carry out that theme we want to play throughout this session, focusing on where we are at the present moment and on the possibilities of closure.

The first discussion will be Dr. Meilaender and the second will be Dr. Alfonso Gómez-Lobo.

Dr. Meilaender?

PROF. MEILAENDER: Thank you. The staff paper that we have for this session quotes some comments that Jim Childress made to the Council when he was here once and they make a point that it seemed to me is useful to start my comment. He was here, you remember, to discuss the Institute of Medicine report, what it had done and what it had not tried even to do and that report dealt mainly with certain kinds of policy questions, some of which we ourselves will talk about in other sessions at this meeting, but what it hadn't tried to do and what Childress said and it's in that quote, said that he thought this Council might usefully do was to push the discussion to what he called the deeper level by thinking through some of the fundamental anthropological questions that are buried in the policy issues. And that I take to be the aim of the staff paper that we're discussing in this session, to invite us to think about such questions and the special contribution that we might make.

I want to highlight just a few aspects of the paper, a few questions that come out of that seem to me central for any report that we might produce. The whole of the paper may be, if I may sort of gently put it this way, a little too interested in teasing out every possible question that arises and I'm going to try to follow each one of those. I'm just going to take up a couple of things.

The passage from Hume that the paper cites somewhat later notes what, in some ways is obvious, but still worth noting that we face changed circumstances, where once the body and its parts might not have been thought of as alienable possessions, in part simply because we lacked the technology to act on that way of thinking anyway. This is no longer true. We're now able to think of the parts of the body as resources available to others and then even as commodifiable resources and here, as elsewhere in life, what we're able to do is hard not to do, even if it's in some ways disturbing.

The first thing I'd say is that I don't think we should suppress that sense of being disturbed. We should try to learn from it. As we've had occasion to note several times along the way in previous meetings, even the dead body retains something of its character as the place of personal presence. Back in June of 2006, an Al Qaeda-led group in Iraq released footage, you probably remember the incident of two corpses that it said were those of U.S. soldiers who had been killed and the video showed a decapitated body and several dead bodies being stepped on.

And if you think about it, that kind of ritual dishonoring of a corpse can't have any point or it has its point only because even the corpse still signifies something about the body's inseparable connection to the person and the presence of the person.

Likewise, in what I thought and I think everybody maybe thought was one of our most interesting sessions, Thomas Lynch, the poet-mortician, gave us a definition of the human that goes a lot deeper, I think, actually than some definitions philosophers might give us. What Lynch said was is ours is the species that keeps track of its dead. That was his anthropology. Keeps track of the persons whose identities are so closely tied even to those now dead bodies. If that is true of the dead body, then how much more so of the living body?

Stuart Spicker, in another session that we had, invited us to think about this. You may remember he even gave us German terms to think about it. Then you know you're serious. Distinguishing between what he called a korper, the material organic body and what he calls leip, the lived body. That was his translation of that, in which the leip, in which the person, the subject is not separated from the body but is one with it and it is thinking, acting, and feeling.

That really is where it seems to me any report we make in some ways does need to start. We don't need German terms probably to accomplish that. But not maybe starting where the staff paper starts with the analogy of machine and body part, but starting with that understanding of the lived body and its wholeness and fullness.

The paper does, the staff paper does capture this, I think, quite nicely at several places along the way.

For instance, in its discussion in the sense in which an organ is not itself a whole, depicts, for instance, a person's respiratory system as involving much more than just the functioning of the lungs, but involving other parts of the body and even in a sense every cell of the body in the intake and outflow of air. It seeks to capture that.

The paper also points to another place to the way in which the immune response is not just a matter of certain cells, but the person responding to the foreign object, the way those cells retain their connection to the whole lived body of the person.

So the organ has to be thought of first in connection to the bodily whole. A kidney doesn't urinate, a person does. An eye or an optic nerve doesn't see, a person does. So we can only understand those as human actions, seeing for instance from above, from the perspective of that whole person, the lived body. And it's this, I think, that has always troubled and disturbed people somewhat when they think about separating or alienating the organ from the person and grafting it into another body of another person.

As I've said, I think it would be a mistake just to suppress that sense of being disturbed because we need it to point us to the sense of the truth about the kinds of beings that we are as embodied wholes, and not just as collections of parts or resources. We have, though, managed to find a way to retain some of that sense while still detaching organs for transplant, and to do this without thinking of the organs simply as a resource. We've done it with the language we're given, which again is I think inseparably connected with where we need to begin. It is not language precisely about motives of agents so much as the nature of the act, and the gift, whatever the precise mode of the giver retains a connection to the giver.

The gift is not utterly and completely detachable from the giver in the way that the commodity is detachable from the seller. So the giving of organs has been the way we found to achieve some good ends for those who are in need without denying that there is also something troubling about what we're doing. It's been a way of trying to do justice to two concerns that just ineluctably stand in a certain tension and the giving language which seems to me important for us to contemplate. It's been our way of doing that.

Anyway, this is where I think we might start the staff's paper. In particular, its decision of the sense in which an organ is not a self-sufficient whole points us in this direction. It's related to that deeper contribution that Jim Childress said we might usefully make. And I think it will make anything we say about specific policy questions more illuminating when we set them into the context of reflection of this sort.

DR. PELLEGRINO: Thank you very much, Gil. What we'll do is go ahead and have Dr. Alfonso Gómez-Lobo's comments and then open up the subject to discussion for the whole Council. Professor Gómez-Lobo?

DR. GÓMEZ-LOBO: Thank you. It's always dangerous to speak after Gil, but I'll try to do my best. I saw the staff paper, very good, excellent staff paper as an invitation, a two-fold invitation. On the one hand to reflect on the philosophical assumptions that underlie the practice of transplantation in general, but I thought it already pointed towards one of the most contentious and concrete points mainly, whether the Council is prepared to endorse or to reject a regulated market in organs.

Now I am going to start by admitting that I find the philosophical issues surrounding organ transplantation perplexing, very perplexing and this may be one more case where philosophy is accused of being useless. Nevertheless, I will try partially to overcome my perplexity and offer first the conjecture about background assumptions that are, I think, unconsciously at work in the proposal, for example, to open up a market for organs. And then I'll end with some suggestions for the discussion.

In the second section of the staff paper, there's an argument that the machine metaphor is at work in much of the conceptualization of transplantation. And the paper shows, I think, in a lucid manner how this metaphor is in many ways misleading, it is insufficient. It leads us the wrong way. For example, it makes us think about organs only as detachable and replaceable body parts. And if they are, why not sell them as we sell automobile parts?

For the purposes of our discussion, I would like to take the metaphor one step backwards. In the 17th century, many thinkers were seduced by the idea that the body was a machine and La Matrise is not the only one. But this was possible. The very conceptual possibility of thinking about the body as a machine was due to the prior assumption that humans are really compounds of two substances, a body or extended thing and a soul or thinking thing. And this view of human nature is known in our profession as dualism.

Now one of the really surprising things in Anglo-American philosophy in recent decades is that dualism consciously or unconsciously is making a comeback. The standard talk about "a fetus becoming a person" requires, I would argue, dualistic assumptions. It requires a body that begins to exist and something quite different that arrives at a later point. A prominent defender of such a view talks about the body being first unoccupied and then occupied by the mind. These are his terms. And of course, by analogy something similar may happen at the end of life, the famous "two death" theory that says in the case of persistent vegetative state, the person dies, say on a given date and then something different, namely the body continues to live and dies later on.

Now this, I think, is a very pervasive view presently in America although it may be, as I said, consciously or unconsciously present in people's minds. Now if we are essentially minds that are associated with a body, then our body is strictly speaking alien to us. And it seems to me that there's a short distance between being alien to me and being alienable, being something whose parts I can sell, something that is over which I have property rights.

As any student of the history of philosophy realizes, dualism, whether Cartesian, that is envisaging body and an immaterial soul or what I would call post-Cartesian or post-modern Cartesian envisaging a body and a material mind, any form of dualism is deeply unsatisfactory.

Now I will not rehearse the arguments here that have been fielded against it. That's typical of our modern philosophy class, but among the many inconsistencies and paradoxes it generates, I would ask you to consider the fact that almost obsessive care of the body occupies center stage even for those who see themselves as essentially minds. I interpret this as a form of performative self-refutation. Perhaps it signals that they do not really believe that their body is an appendage to their minds.

Now what is a reasonable alternative to dualism? I think it is the view that underlies the admirable contributions submitted by Leon to the dignity volume, namely, that we are unified beings, that we're not two-fold, that we're unified beings whose bodies are essential constituents of the person. In my opinion, this entails in a very profound sense that the slogan "our bodies, our selves" is true.

Now what does this contribute to the problems we were discussing? Well, consider for a moment the difference between freely selling one's body in prostitution and freely gifting one's body in committed love. In the language of dignity, the former amounts to treating one's body, that is, oneself as a mere means for the sake of an extremely sick game. The latter, on the other hand, manifests human dignity in one of its highest forms. The action itself is an end and one treats their — oneself and the loved one as an end in him or herself.

I suggest that we might be able to extend this analogy to the selling versus the gifting of body parts. In both cases, the core of our humanity is at stake, but in one of them it seems human dignity is violated.

To this invitation to start from the assumption that his or her body is not alien to a human being, an obvious objection can be raised and will be raised, I think. At the receiving end, there's also — in transplantation, there's also a body, there's also a person who will be preserved if she can buy an organ. In generalizing, we have been urged to consider how a market in human organs will be for the greatest good of the greatest number.

The shape of the argument is well known. It is the utilitarian argument. Perhaps we'll be forced to revisit once again the old dilemma, do good ends justify any means or are there means that we should refrain from using even at the cost of giving up those ends?

I take it that this should give us sufficient material for a discussion. Thank you.

DR. PELLEGRINO: Thank you very much. We'll now open the commentaries and the paper to discussion. The authors of the paper are standing by only to answer technical questions, but we'd like to have the conversation focused on the Council's own opinions and responses.

We'll follow our usual procedure, indicating your desire to speak and we will take each of you in order.

DR. FOSTER:Alfonso, just a very brief question. We've heard "our bodies, our selves" very often. If I have my gall bladder out or somebody takes my uterus out or if I remove pituitary glands and both breasts or something for cancer and so forth, am I less myself? Is that person less of self because a very great deal of our discussion is about donation or selling of organs and so forth. But obviously, you don't literally mean that my body, myself, if it's missing any part then I'm less myself any more than I would be less myself — I mean not in the same sense I'd be less myself if I became cruel or uncaring or something of that sort.

DR. GÓMEZ-LOBO: Well, that opens up the next step in a discussion of this topic, namely, how should we understand the body which is something that I did not touch upon.

There is, of course, the well-known fact that there are — maybe they can be called "dispensable [parts]" of the body. There is this whole problem of what would constitute something like the core elements in the body.

Now, of course, it's not that I'm less of myself, but the question that I'm trying to raise is if there's an integral unity between myself and my body, then the idea of selling organs becomes deeply disturbing, whereas I think that gifting does not.

DR. FOSTER:Well, why is it disturbing to you if, let's forget about the selling and so forth. It doesn't disturb you to give away — to have something taken out, let's say surgically and so forth, but on the other hand, if it's taken out to save a life or something of that sort that's terribly disturbing and as a consequence the human dignity is lost. I'm trying to get the connection between those things.

If you come to me as your physician and I tell you, you know, what I've got to do to you to save your life you might decide you'd rather die, but by and large you would do this. And I'm still struggling with the idea of how it's a loss of human dignity to give or at least to sell an organ to save a life as opposed to taking an organ out to save a life of your own. I mean I just don't really see it.

DR. GÓMEZ-LOBO: If I may. I think it's a very subtle point. The case of extracting an organ say an organ because of gangrene or illness, I think has to be conceptualized as an action for the sake of the good of life, particularly if it is threatening to your life.

Now the case of gifting the organ, I think should be conceptualized in the same way, whereas the selling of an organ has built into its very structure the idea that this is just a means to obtain an extraneous end which is the money. That's the point I think at which there is an important difference in the action itself. It's that there is a goal built into it, a goal which makes say the body or the organ into a means for gain.

DR. PELLEGRINO: Dr. Kass.

DR. KASS: Let me disagree with Alfonso and try to respond to Dan's question.

I don't think that the essential feature here is the exchange of money. If there wasn't something disquieting about the — let me speak luridly, of the self-mutilation, not for the body's own benefit, we wouldn't really be worried about people making a living at it or making gain.

I think the difference has to do with for the same reason that we don't allow (just) anybody to cut a body, we cut the body for the sake of the well-being of that body, usually not for any other reason and that's why live organ donation is at least a dilemma for the medical profession.

It's not true, I think, that in all cases where parts are removed to save a life that the person doesn't somehow feel in some way diminished. I'm not going to speak the language of dignity. People who have hysterectomies or who lose a breast for therapeutic reasons, in the one case, want to have reconstructive surgery and many a woman would feel somehow diminished by this, even if it's lifesaving.

But I think the question has to do with the difference between the amputation of a part for the sake of the whole of which that part has now become threatening and the gratuitous amputation of that part for some extraneous good. And I think if you start this discussion only with the buying and selling, you will not see the kind of question that Gil wants to start us with and I don't think you can do this — I don't think you could sort of see the difficulty if you start where Alfonso says giving not for one's own bodily health is not a mutilation. It becomes a mutilation only when there's commerce involved.

So that would be my — it doesn't settle the question of what we ought to do, but there really is something disquieting about the transfer, especially of non-renewable parts to diminish the wholeness even if for good purpose. And on balance, we might be able to justify that good purpose, but there is some kind of new relation of oneself when one does this. I think.

DR. PELLEGRINO: Thank you. Dr. Eberstadt and Dr. Carson in that order.

DR. EBERSTADT: Leon just touched on the question that I wanted to pose which is whether members of the Council found a discontinuity or a break between the — in terms of their discomfort, between the prospect of transfer of regenerative body parts and the prospect of permanent transfer of non-regenerative body parts. Is this the sort of moral or conceptual line in the sand that people see as being the distinction that we need to focus on?

Alternatively is any sort of transfer of body parts, regenerative or not, a question of discomfort?

DR. PELLEGRINO: Thank you. Dr. Carson?

DR. CARSON:Thank you. I find the whole discussion a little disturbing in the sense that we're trying to come up with our recommendations about how a body market should be crafted. And there's a premise that we ought to even be delving into this and the reason I find it disturbing is that there are portions of our population who would be considerably more tempted to sell their body parts than others for economic reasons. And they might find an easy mechanism for obtaining sustanence when, in fact, if they didn't have that option they might go out and do something else that might be more constructive for society and less destructive for themselves.

It's hard to become part of something that would facilitate something like that and I wonder if perhaps more energy should be devoted to finding ways to encourage organ procurement in situations where the organ is no longer needed.

DR. PELLEGRINO: Dr. Meilaender and Dr. Lawler next.

PROF. MEILAENDER: Back to your question, Dan, which is an important one. When I spend a couple days grading 30 exams, as I did recently, and say to myself, gee, I could have been a doctor instead of doing this, I think about the fact that sometimes we talk about doctors. Classically, we've talked about physicians and surgeons. There's something special about being a surgeon, especially problematic actually in certain respects. And if any of us just think gee, I could have been a doctor, it would be one sort of thing I'd have to do to become a physician and if I wanted to become a surgeon, I would have to repress, really learn to repress certain fundamental impulses, for good reasons, but nevertheless, to repress them, because that is a sort of harm that's done in service of the well being of the person.

I mean it's in that sense even surgery has been troubling in certain respects. We find reason to do it in service to the person, but that's part of what I meant. Part of what I meant in my remarks by saying that we shouldn't suppress our sense that something is troubling, even more troubling in removing the organ in order to transplant it into another body. There may be reasons to do it. But if we don't suppress what bothers us about that it will at least force us to think about whether there are ways of doing that that sort of don't deny the truth of what we're doing and ways of doing it that sort of blind us a little bit to the truth. That's the issue, it seems to me.

DR. PELLEGRINO: Dr. Carson, did you want to respond?

DR. CARSON:Only in the sense that first of all as a surgeon, I don't like to do surgery. Most people find that rather strange. I don't like the sight of blood. They say how can you be a surgeon? I would say would you rather have a surgeon who likes the sight of blood?

(Laughter.)

In fact, perhaps, you do have to suppress certain emotions and tendencies in order to do what you do and it's a very good point to bring up, but still I have to keep coming back to the issue of are there better ways to get organs? I mean how many people die every day with absolutely great organs that, in fact, could be used to save other people's lives?

And the emphasis is not where it needs to be. And until we reach a point where we're taking maximum advantage of those organs that are being wasted, why would we start taking organs from functional individuals?

DR. PELLEGRINO: Dr. Lawler?

DR. LAWLER: Let me say first of all, I agree with Gil's theoretical argument against organ transplants, organ sales, rather. And Ben's practical objections. Nonetheless, I think this is a tough issue in terms of guiding American public policy as opposed to reaching philosophical conclusions. For example, I agree with Alfonso's argument against dualism, but I wonder to what extent our country isn't built on dualism anyway, for example, the core of our understanding of justice is rights.

I understand our rights seem to come mainly from Locke and according to Locke, we're free from nature. And to push ourselves away from nature as far as possible, and Locke does seem to understand the body as our property. So this does present a problem that Locke may — his understanding of rights may be contrary to the high-falutin' understanding of dignity of Leon and Gil.

Second, there are certain practices that we have which should disturb us in terms of precedence. For example, the final arguments made by Leon should make plastic surgery illegal, because what is — cosmetic plastic surgery, obviously — but what is cosmetic plastic surgery but self-mutilation for money? If you look better, you'll make more and we allow this. I don't think if I give up a kidney for whatever reason, I'm diminished in the same way a woman is, if for some reason, has to give up her uterus or give up her eggs. Nonetheless, we allow women to sell their eggs. And that surely diminishes the woman who does that more than the person who would sell a kidney.

And in general, in this report, there is a fine criticism of the body as mechanism which I agree with, I guess. If you understand the body simply as mechanism, if something is broken, then you knock yourself out to find a replacement part.

On the other hand, in the footnote on page 8, footnote 8 on 8, and the material in the text that accompanies that, the alternative presented is we should present more emphasis on preventive medicine to fend off "the tragic necessity of transplantation," but why is that a tragic necessity? It's like Paul's tragic necessity of having to have a bypass operation. Operations aren't tragic. You get old, things happen and as a result you need to be fixed up. There's no way we can create a transplant-free world as long as transplants are legal. There's no way we can prevent organs from going bad completely.

And so prevention seems to me to be mechanical in this sense. You shouldn't have let the machine run down anyway. You should have changed the oil. You should have gone in for the tune up and then you wouldn't need a new carburetor or whatever. So it seems to be a mechanical solution to a mechanical understanding.

Preventive medicine really doesn't fend off the understanding of body as mechanism. It's just another understanding of body as mechanism. So we have a lot of practical problems here in my opinion because of the right space, character or regime or country which may be based on faulty philosophy and especially Leon and Alfonso and Gil have pointed that out to us. But we now have to figure out how to turn our deep insights into actual public policy that will be convincing to people in our country.

DR. PELLEGRINO: Thank you. Gil?

PROF. MEILAENDER: I just could resist responding that a criticism of some views on the grounds that they are theoretical and high falutin'. Appeals to Locke, concepts of rights, concepts of logical consistency — all rather theoretical and high falutin' sort of notions.

(Laughter.)

DR. LAWLER: I accept the criticisms completely.

DR. GAZZANIGA:I bring you greetings from the West Coast where it's 70 degrees, pleasant, a place we could meet.

(Laughter.)

I want to report on Saturday night's dinner party we had at our house. The conversation was lagging a little bit, so I threw out on the table the question of organ sales and we had present that night two neurologists, a surgeon, a bioengineer, a producer of movies and you can imagine what followed.

I can report that no one — as 12 people weighed in, the vote was pretty close,

6-6, and it cut across politics. It cut across religious beliefs. Nothing seemed to predict whether you're for or against organ sales. But one point came up that Dr. Carson made that I thought maybe would be actually productive and maybe the staff could figure this out that the number, to close the organ gap, so we don't have to have this question of sales, how — what would be the number of organs that could be procured, harvested, whatever the word is you want to use from community hospitals where thousands of people die, but they don't have a trauma unit to save these organs.

By simply structuring things differently that there was a surgeon on call for this occasion and would FedEx and all the rest of the mechanisms we have today could generate thousands of organs under current ethical standards and brain death criteria and all the rest of it.

That was a live question that no one seemed to have a sense of, but a suggestion as to how this gap could possibly be closed, because we think of only procuring organs at major medical centers with trauma units and all the rest. But finally, as the evening wore on and we were now into a rather nice cognac, the fundamental question that people left the table with, of course disagreeing about, but that the fundamental aspect — because we also brought up Gil's, this is how I prepare for the meeting — I throw a dinner party and throw out all the questions about Gil's dwarf-tossing as a provocative example of what should be allowed in society and what should not. And the line that took the evening was that the greatest affront to human dignity is not allowing me to choose. So that then means if I wanted to give my kidney or if I want to give my whatever and you don't, fine. I give it, you don't.

How do we get to the discussion that you want to impose your view on this matter on me and I think that maybe that we're going to get to that tomorrow morning, but I won't be here tomorrow morning. So the flow is on one of the factual points, how many organs are we missing and could solve and so we don't get to this touchy question, which it is touchy and let's just face it. And two, and then maybe tomorrow and as we think about it, this overall question, how can you override my view or how come I want to override your view. I think that's a fundamental question of human dignity.

DR. PELLEGRINO: Dr. Foster.

DR. FOSTER:I just want to respond to your question. It's not realistic to say get organs in community hospitals with a surgeon on call. If you're in a transplant center, I mean even if you've got trauma, you've got to fly, you've got to have people who are skilled in doing this. I mean a general surgeon that's on call who does appendicitis and so forth, can't do that.

I mean you're talking about monstrous amounts of money if you want to try to make community hospitals a place to recover organs, even though there are a lot of organs that are lost that way. So I don't think that's a realistic thing and we've heard over and over again that in most of the major centers or in many of them they're now up to recovering 70 percent. I think that's why Ben is wrong about this too. Seventy percent of the organs that are available, so you know, you've got to have a plane on there. You've got to have ambulances. The costs would be just enormous. So I don't think that one is a good way to go.

DR. GAZZANIGA:So that point came up, of course, and there was an extensive discussion, so if you took an advanced community hospital like Santa Barbara's, they thought, the surgeons there thought with slight adjustments they could do it. I stand down. These are the issues that would have to be looked at.

DR. PELLEGRINO: Dr. Carson?

DR. CARSON:I thought about that issue as well and you know the fact of the matter is the concept of getting these available organs is an excellent concept. The question is how do we facilitate it? And to say that because we don't have a mechanism in place right now to facilitate it, let's not think about it is probably not the correct way to do it. The better thing to do is to say well, how do we put in place a logical mechanism and perhaps devote some energy to that.

DR. PELLEGRINO: Professor Dresser.

PROF. DRESSER: This is a more simple-minded way to think about things, but I guess for me these intrusions on the body are a violation and should only be done for a very good reason. So one very good reason is a treatment purpose, to ameliorate an illness for the good of the person.

Another good reason may be to help with research, to help another person live through an organ donation. But it seems to me we should have a very good reason for engaging in this violation. In terms of selling organs, I guess the further question is we are not talking here at this point about prohibiting live organ donation. We're talking about whether it should be promoted more than it is through payment. And so for me, even though I do believe that the payment question is connected to the underlying disquiet about taking the organ, that's true with altruistic donation, I do think we need to focus on this commercial aspect. Is this something that ought to be in the marketplace? And for me, I have a lot of questions about whether taking that step is justified to promote more violations of the body.

I remember a while ago in a discussion on transplantation, a physician saying it seems to me in our society we're developing, we're moving toward a sense that people have an entitlement to an organ, if they need one. And this particular person didn't agree with that idea. But it does seem to be underlying some of our sense that well, we have to get more organs. Of course, it's compassion and it's wanting to help more people, but is there a sense that we have to keep going further and further to get these organs? How far should we go, should we start paying people?

I think that's a very difficult question for me. I'm very hesitant to endorse that particular step.

DR. PELLEGRINO: Leon?

DR. KASS: Actually, it's very hard for any of us to keep from getting into the specific policy questions that are actually the subject of the subsequent sessions, so I would at least like to encourage us to think about this prefatory material where certain larger philosophical questions which define the kind of framework, at least articulate the various human goods that are before us are to be elaborated. And it does seem to me that I would like to endorse in part the spirit of this paper as modified really by Gil's and Alfonso's suggestions that we don't simply take up this philosophical issue beginning with, and defined by, the organ shortage.

A lot of how this comes out, quite apart from the specific recommendations, our real contribution here will depend upon whether we have cast the intellectual and ethical and human framework in a sufficiently rich way. That's something that the people more preoccupied with the policy details will not do. It's something that we have done fairly well in the past and are on the way to doing again.

Gil and Alfonso have talked something about how one should begin really thinking about what is the human body and our stances to it. But Mike Gazzaniga introduces, for example, not so much on the policy question, but a question of the standing of autonomy, whether it be freedom or other people, if Richard Epstein were here, would talk about the right of contract and things of that sort, other kinds of considerations that belong in this discussion early on. And Rebecca, too, is pushing us, I think, to an additional conceptual question about in a way the limits of medicine here and our need of how do you know when to set some kind of — let me start a different way.

Let me take one of the facts that's really crucial. If we are really on the way to a situation where many of us are going to die of vital organ failure for which there are, in principle, replacements, and we're not talking about just the premature deaths of a 40-year-old with kidney failure, but people in their 70s and 80s whose organs are failing, have we created or are we creating a presumption that those who stand in the way of providing the replacement organs are somehow morally and medically failing our citizenry? I think some discussion of that in an early part here, I don't mean necessarily a conclusion, but at least to raise this as a kind of question, I think would be a real contribution.

DR. PELLEGRINO: Thank you.

DR. FOSTER:I don't know why I'm talking so much, I never talk on this thing very much, but an important issue that you just mentioned and the general thing is not about — we're all going to die of organ failure at some point. There's no way to die without organ failure unless you're shot or something like that.

The physician — the simple rules of physicians that have been there since antiquity are to cure disease and prevent premature death when that is possible. The adjective is premature death. Now it might be premature for an 85-year-old who is an Einstein who is healthy, too. I'm not defining — but it's premature death that we're talking about here.

Secondly, to relieve symptoms when cure is not possible. And thirdly, the priestly function of the physician, to comfort always, this is the mercy function which is there. So nobody is arguing about giving a kidney transplant to a 95-year-old person who has got Alzheimer's disease.

Moreover, as you and I talked about briefly this morning and I certainly agree with, we ought to put this policy thing to later on, but even in the pool of kidney transplantations there is already a large pool that will never be transplantable, even if you had enough, because of other on-going problems. When you're on renal dialysis, you've got terrible heart disease, that's what you die from then, not from kidney disease and so forth.

So there's a huge pool that we're not going to do anyway, but I just want to emphasize that I don't — because somebody — Floyd asked me about a sentence in here about ultimately you're going to die of kidney failure or something like that if you live long enough. Well, most kidneys keep working. It's your heart and other things that die, not for kidneys when you get old. So premature is a very important issue in all of this.

DR. PELLEGRINO: Dr. Kass.

DR. KASS: I guess the question is when technology is very powerful, the definition of "premature" is flexible.

DR. PELLEGRINO: Dr. Schaub?

PROF. SCHAUB: Yes, I wanted to say something about Peter's comment about our Lockeian heritage. Peter points out that in Locke the body is regarded as property and there's a teaching about self-ownership. But I wonder whether that teaching about body property necessarily leads to a teaching about the body as mechanism. I mean there's also a teaching in Locke about inalienability and we might find some resources there. I mean I think it's very clear that in Locke there are some limits on what you can do with your self/body. So for instance, you can't sell yourself into slavery. It's self-contradictory to the very notion of rights, to sell yourself into slavery. So it's not a teaching of pure autonomy and it might be that we could sort of trace out some of the misuse of rights talk and the way in which autonomy has sort of gotten out of hand and Locke might give us a better grounding on this.

Also, I think you can make the argument that Locke argues for a kind of rights infrastructure that will lead us to see the person in a certain way and that would protect the kind of inviolability of the person so you know with the prostitution example, I think you could perhaps make a Lockeian argument that there are even certain limits on how you sell your labor. Yes, you can sell your labor, but maybe certain ways of selling your labor sort of undermine this rights infrastructure.

DR. PELLEGRINO: Dr. McHugh.

DR. MCHUGH: I'm not sure I can add a lot to this wonderful conversation we're having, but perhaps it's useful to pick up on what Mike, another theme in Mike's wonderful anecdote of that California dinner party.

We could make a movie out of that and do very well, but he said he came to a conclusion there that was very Californian and that was the only offense to human dignity would be to — if I quote you right, Mike, correct me, would be to interfere with what my rights to choose what I wanted to do.

Well, this is an issue that confronts psychiatrists and sociologists all the time and was picked up, of course, by that brilliant politician/sociologist Daniel Patrick Moynihan when he spoke to the American Sociological Society and ultimately wrote the paper in the American Scholar entitled "Defining Deviancy Down."

And to some extent this is what we're talking about here and is picked up a little bit by what both Gil and Alfonso said. That is that we're dealing with behavior, behavior that confronts us with things that strike us at one level as potentially deviant and wanting to find a way around it.

Now the point about California is that they have given up on that functionalist concept of Dirkheim and Talcott Parsons and anything. And if you even mention the word deviants, they think you're a Flat-Earther. You come from outer space.

But when you live with patients and live with people who are troubled by what they're choosing and what their choice is being forced on them some times, sometimes from within, but sometimes often from the advocacy groups that you would despair when you hear what they're promoting, you wonder.

And so I don't think that we can begin with the idea from California that the dignity depends upon our right to choose everything. And there are certain things, as Diane says that we don't permit people to choose because we realize allowing them to choose that, whether it be slavery or suicide or various other kinds of things, we deform the society in which we're in and I believe with what's been said here too, that a traffic in organs would ultimately deform our society in ways that I would disapprove of.

And then finally, a little bit about prostitution. This is a problem that turns up again and again in the classroom, particularly when I write about "how I deplore it. I get approached now by lots of people who say to me, how can — I don't even like the use of the word 'prostitution.' Dr. McHugh, I want you to speak of sex workers,"to which I always reply, dear, you don't understand sex. You don't understand matrimony and you certainly don't understand prostitution.

DR. PELLEGRINO: Thank you, Paul. Dr. Hurlbut.

DR. MCHUGH: Oh, the last line to that, Leon wants to remind me that there is a last line to that. With prostitution, you don't pay the prostitute for the sex, you pay her to go away and never come back.

DR. PELLEGRINO: Thank you. Dr. Hurlbut.

DR. HURLBUT: A vivid example of what Paul was just talking about, there are cases, rare, but notable, where people actually want to have a limb amputated for some issues of identity or sexuality and I think we immediately recoil from that kind of voluntary mutilation and don't find an adequate retreat in some notion of positive pluralism based on varied identity.

So I agree with Paul and I'm a Californian, too, by the way.

(Laughter.)

But I want to go back Nick's comment, a good question as to whether, if I understood it right, whether our distinction here is between renewable/nonrenewable or what the staff paper calls replenishable versus nonreplenishable. And while I think there's something to that notion, otherwise we wouldn't allow the sale of blood and we think nothing of the sale of hair and we sense that with eggs, what we may have a wrong impression that they're renewable, but at least that's what the prevailing sensitivity is on this issue.

But I just want to throw this general idea out that there's something more to the issue than that distinction, that it is not an adequate distinction to take us too far, but it will take us some ways. And what I would like to suggest is that whatever we do in thinking about this issue, we need to lay out principles that are adequate for a whole range of transplantations or treatments of body parts as parts distinct from the whole, not just for the obvious things that we're dealing with now.

When we first had this discussion, I brought up the notion of womb transplant and it just fell to the floor, but now it can't any more because it's in the newspapers. And we need to be aware that we're talking about a whole range of transplantable human parts that aren't even on our radar yet, so to give you an example, in animal species, they've transplanted testicular tissue, taking it out of one living animal's testes and injecting it into another to — and thereby conferred fertility in infertile animals.

We might some day be talking about ovary transplants. Now we're talking about womb transplants. These seem to me to be different in character, even though they may be argued to be therapeutic in the sense of overcoming some deficiency. They are not quite in the same category of seriousness or at least human significance.

I would just like to throw out a notion for thinking about this a little bit that there might, in fact, be circles of significance, concentric circles of significance in human existence that different body parts have different meanings and that we should be very, very careful before we endorse one broad concept for all transplantations.

I guess that's good enough.

DR. PELLEGRINO: Thank you, Bill. Further comment, Dr. Gómez-Lobo?

DR. GÓMEZ-LOBO: Yes, even at the peril of taking things back to California, I'd like to comment briefly on Mike's remarks because I think they're very important. I think that if we do as Leon encourages us to do to discuss really the philosophical assumptions or philosophical underpinnings here, I would say that that libertarian view is one in different forms. One of the major positions in American society today, it's the idea that anything that limits my freedom is an imposition based on beliefs that someone else has and I don't have.

And it's very important to think about that whether it's correct, whether indeed it is true and whether it's a sufficient way of approaching not only these issues, but many, many issues. In fact, I would say that position is one of the positions that regards the body as alien, as different. Why? Because I choose to regard it like that and I should be free to sell my organs, for instance.

Now what possible objection is there to that? Isn't there something very real in saying, "Well, I do as I choose and you do as you choose, but don't impose your views on me."

I think it would be fine and dandy if one lived in total isolation from other people. That, I think, is the main presupposition, tacit presupposition of the view of that sort for why — and I think Ben was pointing to this — I may be free to buy organs and there may be a poor Salvadorean woman, unemployed somewhere in California, willing to sell her organs and it seems that there would be a free transaction, freedom on both sides.

And yet, I think that a reasonable analysis of the situation is really that it's totally unclear that there is a social context for which that is happening and there are questionable aspects of the freedom of someone who is in dire need, someone who has children, can't feed them and suddenly can sell a kidney for $1,000. It's the consideration of all of that context that I think traditionally has led to the notion that human freedom should be subject to limits. I mean no one can hold that anyone can choose anything.

There are limits to freedom. The classical formulation of it was harm to others was the principle, but of course, the question of harm then arises, and what ways when harming someone else. Once all of that is considered, it seems to me perfectly reasonable, perfectly reasonable that there be limitations of freedom. And one of the things I think we're doing is trying to get the broad view and see whether again there may be reasonable limitations of freedom in the domain with which we're dealing with transplantation. Thank you.

DR. PELLEGRINO: Thank you. Dr. Hurlbut and Dr. Schneider, in that order. I just want to point out we're getting close to the end of our time, so rapidly. Thank you.

DR. HURLBUT: Do you mean to imply that the moral relates only to facilitating social interactions? What I'm wondering here is don't we kind of know ourselves in the mirror of other people? In other words, doesn't the society as a whole actually deliver to us our morality? It's more than a social function, right?

DR. GÓMEZ-LOBO: Sure. Well, this was only a brief recap of the classical argument against extreme libertarians. Of course, there are myriads of other considerations, it seems to me.

DR. PELLEGRINO: Peter?

DR. LAWLER: Let me agree with Alfonso. Maybe the problem is creeping and creepy libertarianism that the imposition of the spirit of contract and consent into all areas of life and so a lot of people and not only in California, agree with me, in fact, that the dignity limits the choice that aren't absolutely necessary. And we have to say that that understanding of dignity is autonomy, more or less, does depend upon the understanding of the body as mechanism that is rejected in this report.

And Paul is right to say that our argument against prostitution is eroding. This idea that prostitutes are really sex workers is taking over, unfortunately. And so the only objection to prostitution we have left is that it's unsafe for the prostitute. The contract is unfair, but the moral objection to prostitution is on hard times today. And of course, a limit to our choice would be slavery, but I don't really see how selling my kidney, assuming it's safe, would be subjecting myself to slavery.

And I think the point of the paper and Gil, Alfonso and Leon is there's more to this than health and safety. I agree that we really don't have sufficient knowledge to know that selling your kidney is really a safe thing to do over the long term. I agree that people who sell their kidneys are very likely to be exploited and this kind of freedom is likely to be very bad for the poor. "Get off welfare, you've still got two kidneys," more or less. But having said all of that, I think the point of this philosophical discussion has been to show there's more to it than that because what we want to do is reject the very idea of body as a mechanism from which we can alienate ourselves.

I agree with Alfonso, the real point is to reject dualism and embrace Gil's understanding of the body or something like that. But I have to say, this is a very radical thing to do in the American context and we shouldn't underestimate how radical a thing this is to do in the American context.

DR. PELLEGRINO: Professor Schneider, then I see Paul. That will have to be the last one, Paul.

PROF. SCHNEIDER: My dinner party was two nights ago, safely far from the West Coast. I was in Texas and the dinner party there involved a person who is probably alive and certainly relatively healthy because he had had a kidney transplant. And the discussion involved whether or not he should have accepted the transplant from his son. He had resisted doing that for a long time and finally acquiesced. And if there was a consensus on the table, it was that the son had done something wonderful and the father had been wise in accepting the son's gift.

And this comes to my mind because I'm having a hard time following this conversation because I don't have the right moral instincts. I don't have the moral instinct that there is something repellent about the initial giving of something of your body to somebody else. And as I'm understanding part of this conversation is an attempt to predict how people are going to respond socially to a world in which transplantation comes more often.

And I think that the pretty striking unanimity here would not be reflected in very large parts of American society, not on the libertarian grounds, which I have not a lot of sympathy with, but because I think that people very widely will not respond with the kinds of emotional reactions and perceptions that people here so widely have.

I am extremely uncomfortable with quick predictions about how people react to new things. It certainly is possible that if you bought and sold kidneys that people would come to regard them as another piece of easily alienable property, hardly different from corn, wheat and coffee cups. But in fact, I think that's quite unlikely and I think that before we make easy guesses about people's responses, we ought to think much more complicated and I would prefer empirically based ways about what the social context of these transactions would be and therefore how they would be perceived.

I think that people's reactions would very largely be like the reaction at the dinner party. The person who didn't die was a person who was valued by lots of people and the thing that his son was able to do for him was something that the son was likely to regard as the best thing he ever did in his life.

DR. PELLEGRINO: Thank you. Dr. Meilaender?

PROF. MEILAENDER: I'll make one quick comment about what Carl said, but I had something else I wanted to say. I didn't think we were making predictions about how people would think. I thought we were talking about offering whatever guidance we might have about wise ways to think about it.

But I wanted to come back to the — in a sense, we've had two themes arise, just sort of the body and its significance and the autonomy choice theme. And they're not entirely separate although figuring out how to really put the two together wouldn't be an easy thing, but Hobbes in his De Cive has the thought experiment where he says you know, suppose that men came into being this way, that they sprang out of the ground like mushrooms without any connection to each other. And Hobbes uses the thought experiment because he's trying to think if people are really that separated, how would you get them back into something like civil society and the answer is only through choice, only through contract, only through will. That's what you do.

And the problem with the thought experiment and what makes that strong libertarian notion of autonomy mistaken is that human beings don't come into existence like mushrooms. They come into existence with a bodily connection to others so that the body has a kind of personal significance from the very start.

Now you know whether we can sort that out in ways that are illuminating or not, I don't know, but I actually don't think that these two subjects are entirely separate subjects. I think they're related and the sense that almost everybody has that there are some limits to choice, there are some things we won't let you do even if you seem freely to choose them is not just a sense that we draw back at the issue of choice, but it's connected with the kind of beings that we think we are and the kind of beings that we think we are has something to do with the body and that's there right from the start because we're not like mushrooms.

I do think these two subjects are connected in ways that we might sort of fruitfully illumine.

DR. PELLEGRINO: Thank you. Paul?

DR. MCHUGH: I just wanted to follow up a little bit on what I was saying so that I could make myself just a little bit more clear.

Once again, we're talking about behavior, behavior of doctors, behavior of donors, behavior really also of recipients and behaviors are judged by the ends they serve and partly we're struggling about what these ends are. The patient who receives the donor, the behavior of accepting a donor, is of course, often to flourish as Carl has said and that's the thing that makes it so wonderful to know that we can do this and rescue people who were lost.

I, after all, I said before at the Brigham, when they first did these twin kidney transplants back in the mid-50s and it was a very interesting time because some of these issues came up then, but one of the things that was clear was that the recipient was really receiving something.

The question of the doctor in this thing, what his behavior or her behavior serves, well, it certainly serves an aspect of curing, treating successfully the recipient, but is the doctor benefitting the donor? It's likely a reminder to us that the Hippocratic Oath begins by saying again and again I'll enter to benefit the patient. And it's a bit hard when you're sitting with a donor to know how much you're benefitting her or him to take his kidney out.

Now it turns out that it's a lot easier to take kidneys out than it was back in the '50s. Now they do it with laparscopic, the donor is out of the hospital within a day or two almost. They probably go home the same day, so the danger is a lot less, but I remember back then when we worried a lot about these donors and what we might be doing for them and we did feel a sort of sense of this, that we might be deviating from our role as physicians and that we needed to alter our sense of behavior and to define deviance down a little bit to make this happen.

The only thing I think we're talking about or at least I'm talking about at this moment is not to make regulations or decide on certain things, but just to lay out the groundwork for understanding where we are. And these wonderful dinner parties, one in Texas and one in California, are so illuminating because they reflect just what you're saying, that what is the common feeling of people?

And then finally, I want to get back — I got into this prostitution business, Diane brought me into it.

(Laughter.)

And I just want to make this point about how this logic works out for psychiatrists anyway and it does work out in that sequence and I've raised this because Dr. Lawler is making a point that we're losing ground in our concerns about prostitution. Ultimately, like anything else, it goes back to the beginnings, and what is the behavior that we're talking about and what ends does it serve.

And the behavior we're talking about is sexual behavior. And although human sexual behavior has many things to it, it is, psychiatrists say and think, nature's way of turning a stranger into a relative, okay? That's what it is. That's how it's done. We come from relatives by biology and we become relatives through our sexual life, okay? And that's the reason, of course, why in matrimony, we say in matrimony this is the relative, not only the relative I've chosen, but this is the precious one I've chosen. This is the person [without whom] for me life wouldn't be life.

And therefore, the line with the prostitute is you don't pay the prostitute for sex. You can get sex everywhere. You pay the prostitute to go away, don't write, don't call, don't do anything. That's what you're paying for. And that's why it's debasing in the behavior because it's cutting at what the behavior is intended to do.

DR. PELLEGRINO: Thank you, Paul. We will re-assemble at 10:40. Before we do so, may I complete one prior brief comment, very brief comment.

For some relief, the fact that I'm an internist and therefore my invasions of the body are somewhat superficial, then so no one needs to worry very much about that. But the second point is reiteration of a fact that it's very important, as we move into the practical questions to look at the philosophical foundations for them.

Given Alfonso Gómez-Lobo's very, very modest claims about philosophy, I do think that fundamentally, the ethical issues that we talk about with principles have to be grounded in some philosophical perspective. And the complexity of the discussion this morning and the diversity of opinion is I think one of the issues that's the foundation of the difficulties in bioethics today. We have different perceptions of what it is to be human, different philosophical anthropology, gives you a different system of ethics, and certainly it's illustrated here when you look at the body, how you treat it, what it is, it goes back to the fundamental question, the ti esti question that Socrates always asked — that is, the question of "what is it?"

Thank you very much. We'll reassemble at 10:40.

DR. FOSTER:Mr. Chair, one sentence. Because everybody has been talking about prostitution, I didn't think we'd be doing that, but I want to tell you in about a sentence about a dinner party by a distinguished physician. When I was getting ready to go to medical school and they were trying to recruit us and this distinguished physician said medicine is the second oldest profession in the world and like the first, we'd like to do it for love, but we just got to do it for money.

(Laughter.)

(Off the record.)

SESSION 2: THE ETHICS OF ORGAN ALLOCATION: POLICY QUESTIONS CONCERNING GEOGRAPHY, AGE, AND NET BENEFIT

DR. PELLEGRINO: I think we can reassemble, if members of the Council will come in.

(Pause.)

The next session is dedicated to the question of organ allocation which is running through all of the discussions, of course. We move from the philosophical now to the practical, but they're never separable. I presume we'll remember that.

I'm going to ask Dr. Eberstadt to start off the discussion. Dr. George isn't here yet. He usually comes by train and I hope he hasn't had too much difficulty.

Dr. Eberstadt, will you take us off into whatever direction you think we should move at the outset?

DR. EBERSTADT: Thank you very much. This fine discussion paper focuses us upon questions of efficiency and equity and allocative algorithms as regard organ allocation.

When one is talking about allocation and efficiency and equity, these themes take us very quickly into a slightly more distant realm, but not in the relevant realm, I think to our discussions which is the realm of economic reasoning and economic processes which are not touched upon directly in this discussion paper, but I think — I don't think it would do injury to our discussion to cut directly to this part of the chase. So I think our discussions will focus upon some of these questions in this session and further ones.

Broadly speaking, the economic process is a process of maximizing human welfare or attempting to maximize human welfare under material constraints through exchange transactions and through choices about allocation. And when the economic process as just described is at work, economists expect a couple of sorts of results to accrue. One set of results involves a certain sort of efficiency, an efficient allocation of commodities, of assets and also if one accepts the initial starting endowments of assets and commodities of the actors in question, one expects also for a certain sort of equity to result.

And in one strand of economic thinking, this type of equity is referred to as Pareto optimality which is a notional concept in which one person's welfare cannot be improved without diminishing the welfare of someone else.

Now as we have already discussed this morning, an economic mechanism or market mechanism entails a commoditization of assets or items and as we've already discussed, there is certainly with human body parts, ample opportunity and risk for self-mutilization, self-degradation and demeaning or diminution of some sort of humanity in such transactions.

There is something else that happens in the workings of the ordinary market mechanism or an economic process besides commoditization, just less seldom discussed. And this is transmission of information, transmission of information about personal preferences, human preferences, and that modulated sense, desires. Any sort of algorithm of the sort that's discussed in this discussion paper and other ones is a preference function. Economists would say that's a preference function, but it's a preference function set by a single actor, in this case, by the state actor.

And economists will tell you that there are certain characteristics and attributes of single actor preference functions. It's in the unhappy workings of certain economic systems, it's what one saw in central planning systems, in Soviet-style planning approaches. And one of the risks to an economist of a single actor preference function is that one is likely to have either gluts or queues, either gluts or shortages that emanate from such an algorithm.

A more market-like process of determining an algorithm inherently brings more information about personal preferences to play and even in an open society it's not clear that a single actor preference function can entirely mimic the results that one would see from a more market-like process.

Now as we've already discussed in our first — we've already talked in our first session about some of the concerns and, I think, legitimate worries that members on the Council and members of our society have about the march towards commoditization of the transfer of body parts in the United States and internationally.

And I think we'd have to say that if the horse hasn't exactly left yet, the barn door is already pretty wide open and we've talked about different aspects of this already this morning. There already is a market in the United States and elsewhere in certain bodily components. We've mentioned blood. We've mentioned eggs, semen. We could add, we could mention bone, tissue, skin, which is defined in some government documents as an organ. And with respect to non-regenerative body parts or organs, we already have something approaching a market in rentals. Rent-a-womb for production of babies and with the prospect of further technological advance, it may not be so fanciful to think that we'll be speaking about the prospect of rental of other nonregenerative organs in the future, rather than permanent assignment.

It may, at the moment, seem fanciful to talk about renting a kidney or renting an eye, but I don't know whether that will seem so fanciful 20 or 25 years from now. So this line, perhaps between permanence and impermanence may be blurred even further by innovation and technological advance in the future.

Although we've already gone rather far in this process of commoditizing the human body, there arestill things that overwhelmingly make ordinary citizens in our country recoil. And we mentioned some of those already in our discussion this morning. We don't think it's cool to allow people to sell themselves into slavery. We don't think it's cool to allow our daughters to be sold into marriage. And although we have an active discussion about whether prostitutes are sex workers or not, we still don't think it's cool to allow a child to be sold for sex.

So the question is at this fairly late stage in the game, where do we, as a Council, see the legitimate role of market or market-like functions to be in this question of the transfer of human body parts. What is fair game for the definition of the human welfare that the economic process will set automatically about to maximize and where can we and where should we draw the line about the sorts of processes that economic functions might see to make more efficient?

I'll stop there.

DR. PELLEGRINO: Dr. Kass?

DR. KASS: I don't know, Mr. Chairman, whether you want sort of more general comments or whether you would welcome some discussion of some of the particular pieces after Nick's very fine, sort of review.

DR. PELLEGRINO: We certainly would like to get to the specifics, if possible, but the general would be useful as well.

DR. KASS: I do want to go, I think, to the specifics and in particular the age question which it seems to me is especially if the take the longer range view of going to be critical, between 1998 and the year 2005, a five-fold increase in the number of transplants of people, are now for people over the age 65 and the numbers are going in that direction. Almost 60 percent are age 50 and over. And I gather that age figures somewhat in the algorithm already, at least with respect to kidneys, with respect to pediatric candidates, restricted to donors of a certain age, if I'm not misunderstanding where we stand. But I think this would be a hard thing to sell as a matter of absolute principle and there would always be exceptions that would lead one to want to deny it. But it does seem to me that there ought to be some way of expressing — I'll speak — this is simply my own view.

I think there ought to be some way of expressing the preference that age should increasingly count increasingly more and in a negative sense. Not only because of the net benefit where the age figures into the calculation of the net benefit, but primarily really on something like the argument that has been developed here, the fair innings over a lifetime kind of argument.

Carl Schneider's very moving story about the son and the father, those are conversation-stopping and refutations to any other kinds of thoughts, but in general, I am much more sympathetic to a father who would want to give his kidney to the son than the other way around. And as a matter of social policy, it seems to me that especially if we take Dan Foster's general premise, premature death is what we're after, that we ought not in an aging society, which many, many more people on this list are going to be, who have had their fair innings, that we ought to find some way to correct for that kind of tendency and I don't know whether people agree with me on this or not. But that was the strongest thing that I got coming out of this. The geographical thing doesn't bother me very much. But on the age thing, I think especially to see where we're going, and I would hope we have at least a vigorous discussion of this and see whether there's an agreement on some kind of formulation principle.

DR. PELLEGRINO: Thank you.

Janet?

DR. ROWLEY: As one of the older members of the Council, I support Dr. Kass.

DR. PELLEGRINO: Thank you. Dr. Kass?

DR. CARSON: I think what Leon brings up is vitally important, as our knowledge increases and our technological abilities advance. When you think back to the last turn of the century, not the one we just went through, the average age of death in this country was 47 years. Now you can reverse those digits and still add a couple. There's no reason to think that that's not going to continue. At some point it becomes deleterious to the subsequent generations if all of the people continue to live who have all the money and all the power. That's one aside.

The other one being vitality. As a person ages, obviously their vitality decreases and when it comes to the allocation of organs, it seems to me that we would want to allocate them in such a way that we achieve the maximum for our society, so I don't think really that this is — I mean if somebody has an alternative view, I would certainly love to hear it, but I can't imagine why there would be an alternative view to that.

DR. PELLEGRINO: Thank you.

Gil?

PROF. MEILAENDER: Let me stretch the limits of your imagination.

(Laughter.)

We should, at least, think through reasons to go in the other direction from the one Leon sketches. He may not be entirely surprised to hear me think it through from this angle. I realized as I worked through, especially I think this staff paper, I realized that actually thinking as I do about the issues we talked in the first session, I'm not really — I understand about the change, but what I'm about to say — I'm not really very content with the system that makes equity and efficiency the two criteria, because I'm not very happy with the criteria of efficiency which inevitably leads you to think of organs as resources, to be efficiently or inefficiently distributed.

So that from the start, I came to realize I'm actually inclined toward a view which would say make a medical determination about who is able to benefit from a transplant and who is not. I mean obviously, you can't transplant a kidney into somebody who can't really benefit from it. Make a medical determination about that and then have a lottery, among all those — a perfectly equitable procedure. Maybe not as efficient as some others, but perfectly equitable. And it is a way of treating people equally.

I realize — and I don't want to press it too hard because I understand the — I think the fair innings argument also has a certain kind of compelling force to it. And I think really the reason it does is because you can look at a human life and actually should look at a human life from both of two angles, not just one or the other as a kind of a finite life that has a trajectory over time and it's different to be 35 than 65. And as a life in every single moment is equidistant from eternity. And therefore is governed by those temporal categories.

A lottery approach or equity alone, let's just say approach, thinks of lives as equidistant from eternity, not just as stretched out over time. So it's not that I sort of want to go to the wall arguing against some kind of fair innings sort of argument, but I think there are powerful reasons not to be drawn to it. I think it is part of a general argument that inclines us to think about efficiency in relation to organs in ways that may be a little incompatible with the way I'd like to think about them in general. And therefore sort of a reluctant — just not strong opposition, but it's reluctance to just be drawn into that.

DR. PELLEGRINO: Peter?

PROF. LAWLER: Let me sort of agree with Gil on this insofar as this equity thing seems to me so difficult and accept as a lottery which at least is democratic.

For example, I agree that there is something creepy about the general tendency in an aging society for resources to go from the young to the old which is — which will be, in general, our new principle of redistribution.

So if a son or daughter gives a kidney to a parent, that's fine as an act of generosity, we can have no opinion on that. But as a matter of public policy, a distribution of kidneys that gives, in general, sends young people's kidneys to old people or healthy kidneys which are, at the moment of death, healthy even though the rest of the body is not in such good shape, to people who are old and messed up in many ways, also seems to me to be perverse and so I'm against this.

On the other hand, to go down the equity road a bit more, that might mean that a fine upstanding person with 2,800 people dependent on his who is 70 and is otherwise in perfect health because of a stern, physical regimen this person has had his whole life, and because of the great work this person is doing in so many areas of society doesn't get a kidney over some 35 year-old bachelor slob who needs a kidney because he's abused himself in any way since he was 12. And so that doesn't seem fair. And once you acknowledge that, you start to acknowledge that any kind of formula you're going to have is going to be deficient and a lot of this algorithm stuff is kind of pseudo science. I'm not against it. I'm not criticizing the way they do things, except there's a deep arbitrariness beneath the surface, as Gil pointed out, so there might be something to this lottery thing. That once you're shown to be able to benefit from a kidney, why finally can we make too many judgments beyond that that aren't, in some deep sense, arbitrary at the end of the day.

DR. PELLEGRINO: Rebecca?

DR. KASS: Could I just ask a question?

DR. PELLEGRINO: Yes.

DR. KASS: Does that mean, Peter, that you would be in favor of our recommending that they do away with algorithms altogether, just do a lottery?

DR. LAWLER: I'm not sure, but when I read about the algorithm it's so easy to say well, I guess, but.

DR. PELLEGRINO: Rebecca.

PROF. DRESSER: I don't want to change the subject, but I wonder if it would be easy to get rid of a few things so we could focus on the tougher questions. The role of geography, whether being in the same region should somehow count for the recipient. For me, I don't see an analogy between one's family and friends and people who live in the same state that I do. I don't think that community is defined by living in the same region. So I don't think that should count myself.

The other point is that to the extent that shipping the organs reduces their vitality, I think it should count. So this wasn't clear in this discussion paper to me. It almost sounded as though well, it doesn't matter, it could go from New York to California. It wouldn't make any difference in the vitality of the organ and I think with cadaveric, it definitely does.

The other point I wanted to make, we're really not asked to do in the paper, but the paper notes this practice of registering in multiple centers and ever since I heard about that I thought that is really unfair and we shouldn't allow it. I wonder if anyone has any arguments in favor of it or if the Council thinks we could at least say we don't think that's ethically justifiable. It's unfair to people who can't manage to get on more than one list.

DR. PELLEGRINO: Thank you.

Dr. Eberstadt?

DR. EBERSTADT: I think that the argument for a lottery is a coherent and legitimate alternative to sort of a utilitarian calculus. It has a coherence of its own. What I would observe is if we begin to argue that a 35-year-old has more standing for a transplant than a 70-year-old, we have to explain why we are not embracing a utilitarian calculus here.

There are a lot of metrics which already exist in health planning and all of them are, although their progenitors may not have recognized this, they're all relentlessly utilitarian.

The calculus, for example, of years of potential life lost maximizing the years of life saved is intrinsically utilitarian. There is a new, and in the view of its own inventors, an improved version of years of potential life lost called — it has the infelicitous acronym of DALY, disability adjusted life years. You are supposed to sum morbidity and mortality into one sort of GNP-like perfect measure.

Simply to note, if we are going to say that age matters in allocations, I think we also have to say whether we are doing this for utilitarian reasons or for other reasons and to make this explicit.

DR. PELLEGRINO: Gil?

PROF. MEILAENDER: Not to take back what I said before, but to complicate it a bit, I do think that — and I believe when Leon started us it was the fair innings argument that you were using. I think that's a little better than like just the net benefit possibility. If you just think of human life years, you're not a part of some whole called human life years. Individuals aren't.

And that, I think is problematic in a way you were talking about, Nick, that maybe the fair innings argument isn't. At least, if I'm forced to plump for some age-based criterion, the fair innings argument looks to me considerably better than some clearly net benefits approach.

DR. PELLEGRINO: Dr. Gómez-Lobo.

DR. GÓMEZ-LOBO: I'm sort of eager to come down on these issues one way or the other. With regard to the role of geography, I very much endorse Rebecca's view. I'm very skeptical about this idealization of community in the United States today. I think that one of the reasons why democracy works is not because there are these intermediate communities of loyalty and fidelity — they simply don't exist. We relate more or less directly to the state.

So in that regard, and if geography does not affect the vitality of an organ, I would say we should go for option 1, that is a unified system which also would ban the double-dipping, of putting oneself on two waiting lists.

With regard to age, I became convinced that there is a very important point of justice and equity here, which I'm afraid might not be solved by a lottery. I'm skeptical of the lottery because a lottery is a fair procedure if there is more or less equal standing among the people who go into the lottery. If there are uneven factors, for instance, if someone is extremely sick and you go into a lottery with someone who is not that sick and the person who wasn't sick wins, there seems — I would be concerned about that.

Now I just don't like Dan Callahan's view that there should be a cutoff point. I don't see any way of reasonably justifying that, of saying everybody 65 years or older doesn't get it or so. And that's why I'm inclined to endorse Option 3 in which we simply keep the algorithm, but do it in such a way that age goes into it with all of the other factors, but that it not be a deciding factor.

And with regard to the role of net benefit in organ allocation, I must overtly confess I haven't fully understood it, so I'm not sure whether I would support or reject the KARS proposal. If someone can illustrate that for in a better way, maybe I would come down on way or the other.

Thank you.

DR. PELLEGRINO: Yes.

DR. GAZZANIGA:This section is looking at the issues of geography, age and net benefit and so forth, is important because UNOS has failed us in this area and that there are all kinds of discrepancies. One knows about confined and you can — you may be four on the list in county, 326th on the next in getting a kidney or liver. And so those problems, we're all aware of and one of the reasons we discussed open markets and the rest of it is to solve these problems by having another method of organ generation.

So the question I have is before we get too deeply into whether we consider age and how we bias these things and whether we rewrite the algorithms, is do we — if we vote on one of these options, are we implicitly supporting the UNOS position here and if so, I think some of us would choose not to vote on this, because we haven't dealt head on with alternative methods.

DR. PELLEGRINO: Thank you.

Gil?

PROF. MEILAENDER: A couple of comments. I'm not — again, I'm not trying to push — the lottery idea for me is simply a way of thinking of helping to think about what we're presupposing in the system as it is right now, but there's a sense, Alfonso, in which in the most important sense everyone who could genuinely benefit medically from a transplant does have equal standing. I mean when the issue is life or death, life as a whole comes into play and it seems to me that they are equal in the most fundamental sense there. But then I wanted to comment on the geography question, just to persuade all of you that I'm out of it on these issues.

I think I'm the only person who's expressed any reservation or any sort of support or sympathy for the geography consideration previously, and I may be the only one still, but I mean there are a couple of things we're thinking about. I'm not federalizing and thinking of it as a national thing is once again a way of thinking — I mean here we are, we've got this resource and we should see to it that it gets fairly distributed. But we don't follow that out everywhere. We certainly don't think that you shouldn't be free to give a kidney to somebody in your family, for instance, that's wholly apart from geographic considerations.

In other respects, we don't follow it out. We're not pushing to make this international, rather than national. Now there might be some logistical problems right now, but those can be overcome in the long run and why — we're just human beings here, why stop at national boundaries, after all? So that I think that thinking of us just as citizens of this country, as opposed to other localities, may miss something about who we are and again, it moves just in the direction of efficiency. Gifts are not governed by considerations of efficiency only, after all. So again, I'm not — I'm not going to go to the wall for this one. This may be less important than the age one and less philosophically interesting. But I would just not run roughshod over some of those distinctions in life.

DR. PELLEGRINO: Dr. Hurlbut.

DR. HURLBUT: I have some of the same sentiments that Gil does, just so you don't feel too alienated here.

(Laughter.)

I think that the ties of attachment also have their geographic kind of attenuation and I wonder if there's any — there are any practical studies on the effect of a national pool versus local donation. It might be that people — that an individual might donate more readily to his local community.

It's true with financial donations, right, and requests to communities. Could it possibly be true with organs?

DR. DAVIS: There is no evidence about the argument that you donate, you'd be more willing to donate if you knew that individuals receiving the organs you donate were or are members of the same local community.

DR. HURLBUT: Is that because there are no studies?

DR. DAVIS:There have been no studies, that's correct.

DR. FOSTER: But that's much more important, I suppose the community, if you're talking about living donors. If you're talking about cadaver donors, I mean it's already drawn pretty much nationally and there are new companies been formed to improve the preservation of the organs while they're in transport, instead of just putting them in cold ice, you know and giving them so glucose so that there's some energy there. I mean they're now treating them more like a bypass in coronary arteries. So I don't think that we're going to have a problem of taking an organ to go to California and so forth, but already — so maybe, I think, Bill, if it's a community where you're giving living, I think you might be. But I don't think that's operative right now in terms of the fact that the kidneys move all over.

DR. HURLBUT: I didn't mean practical transport, I meant the feeling that invokes donation. We just tend to feel related to the groups we dwell with and —

DR. PELLEGRINO: Dr. Schaub?

PROF. SCHAUB: Yes, on this and there might be more practical consideration. Also, the staff report mentions that the smaller OPOs are hostile to the notion of a national waiting list. I think that would be worth taking seriously. If their prediction is right that they would be driven out of business, that would actually have a long-term unintended effect on the efficiency of this and it might decrease donations because now people have to travel farther to do it.

DR. HURLBUT: You know, one thing that was mentioned later in one of our documents is that some states have compensation for donors in ways that other states don't. And there again, the local environment is deciding that. Shouldn't they, in some way, benefit from their policies?

Dr. Eberstadt?

DR. EBERSTADT: This isn't only a mischievous question, but it seems to me that you and to an extent, Gil, have raised the question here regarding geography of what one's — not only what one's attachment is, but what one's affiliation is and that bears on the question of what your identity is, I think.

If we were to think about geography, as a component, would we also think about ethnicity and if we were not to think about ethnicity, why not? How does that — how is that qualitatively different from consideration of geography?

DR. PELLEGRINO: Bill?

DR. HURLBUT: I thought about that when we were talking about paired donations and list donations, because it struck me that both for efficiency purposes and for connected purposes, I mean if you're really going to do an equation for efficiency, I made a list of considerations. There are differences in life expectancy based on race, education, sex, lifestyle things like obesity, smoking, driving record. So why not put those into the efficiency equation? Well, we won't because we sense there's something wrong with that and I think that's the answer to your comment.

On the other hand, I think we would also feel something odd about list-impaired donations that were only say to members of the AAAS, for example, or your local church or something like that. Something feels wrong about that. But maybe we should explore that.

DR. PELLEGRINO: Dr. Dresser?

PROF. DRESSER: Just to push this, I do think living donation situations are different in terms of region and that if a living donor prefers to give to a friend or family member, yes, I think we should support that. But if I were donating a family member's organs, and I happened to be in a small region and there were only five people on the list so the organ would go to someone who didn't have as much ability to benefit or wasn't in as much need as someone in the next region over, I would be unhappy about that. I would rather that it went to someone who was in greater need than someone in my region.

DR. PELLEGRINO: Other comments?

Leon?

DR. KASS: I mean if we're staying on this geography thing just a little longer before going to back to maybe the more difficult one, I think professors and intellectuals are among the cosmopolitans and don't feel that kind of attachment to place whereas — especially with regard to living donations.

I think that there are identities that people identify themselves with their small towns and with their small communities and the likelihood of mobilizing that — especially if we're thinking now about the spirit of giving that might move people, I think it's a lot easier, as it is with charity, in general, to mobilize people for things closer to home, however much philosophically we might sort of see that we're really all part of some totality.

That's partly why I don't come out where Rebecca does on this one.

DR. PELLEGRINO: Alfonso?

DR. GÓMEZ-LOBO: This may be a question for Nick. How realistic is the reference to small hometown? I ask this really from my own experience. When I came to this area, I lived in a place where the normal turnaround in school was almost 30 percent. I mean it was a totally transient population and if I look back, I would say I had no links to virtually anyone just because they lived there. Anybody that lived there that I was connected to was due to being at the same university or something of that sort.

That's where I'm a little bit scared that we're looking at this in a sort of romantic view of New England township in the mid-19th century or something like that. Is that realistic? Is that a realistic view of how we live today?

DR. PELLEGRINO: Peter?

DR. LAWLER: Gil raised the objection, I think, to regarding kidneys as simply resources to be distributed most efficiently. But they, in fact, once we reach this point, that's exactly what they are. There's just no getting around that.

So all the comments have been made as far as I can figure are speculative concerning what we generate, the maximum number of kidneys and distribute them most efficiently. So you have these speculations concerning importance of regional attachment and all that.

And then the practical objections to a national market raised by Diana and Bill, which seemed pretty powerful, but they are practical objections related to efficiency in terms of generating the maximum number of organs and really nothing more.

And so Alfonso's comment and all that, is it realistic? Will we have to have a study that shows whether it's realistic or not. We really don't know. I mean we seem to have different opinions on this.

So the bottom line seems to be this geographical thing, what to do about it, cast in terms of what is the most efficient way of maximizing the number of kidneys. I don't see anything else really going on here at the end of the day.

DR. HURLBUT: I want to clarify that I didn't mean only in the matter of efficiency. I think it had something to do in my feeling with the whole relationship of donation itself. So it wasn't just what would maximize it. That was another consideration.

DR. LAWLER: Okay, I forgot about that one. The one I was asking about is different states have different policies and some policies are more generous to donors, shouldn't those states reward those policies? That to me was a good practical objection to a national policy which could be eradicated by national policies with respect to how donors are treated and all that.

So I have no answers to any of this except to say I'm suspicious of the regional attachment thing as an independent variable here. I'm open to the possibility that it might — these practical objections might point in the direction of some geographical criteria is more efficient. But I have some sympathy too with Alfonso's objection that all of these comments might have been a tad romantic, all things considered.

DR. PELLEGRINO: Professor Schneider?

PROF. SCHNEIDER: I first want to say that I live out in the country in Michigan and there's nothing particularly romantic about it, but it's also true that a very large number of people live within 25 miles of where they grow up, even in the United States today. And I always worry about this fabulously unrepresentative group trying to imagine how the world works by thinking about their own lives.

But I'm not sure if I'm extending Peter's point by saying that I have become very uncomfortable with this discussion. We're talking about quite an elaborate system that tries to balance a whole lot of things that we have very weak grasp on. And we're talking about making public policy here by quickly reading some intelligent comments about a few parts of this large operation.

And I've been moved by a number of things people have said. Despite the story that I told, I agree with Leon and I'm sure that the father would have much rather been the one to be able to benefit his son. Nevertheless, to go from those sensible and even right comments to giving the country advice about how it ought to make this complicated system work, makes me, particularly as a lawyer, very nervous.

DR. PELLEGRINO: Dr. Foster?

DR. FOSTER:I think I mentioned this in the previous discussion about geography, but sometimes the geographical thing, the motivations there are not for fairness in the distribution, but for money-making purposes in the hospital.

If you live in Dallas County, as opposed to living in Fort Worth, you have a five time longer waiting time to get an organ. The biggest public hospital in Dallas is called Baylor University Hospital. So they built a new hospital across the country line in Grapevine, Texas because they could get many more transplants done quickly there than in the City of Dallas.

Now in most major centers, the most profitable thing in a hospital is transplantation. Now a lot of that is bone marrow transplantation. But at the Mayo Clinic, the most profitable thing is transplantation. So geography was impairing the ability of the Baylor Hospital system to make as much money as they wanted to make. It had nothing to do with the people who are waiting in line on the other side. So there are other things that are maybe a little unfair in terms of geographical distribution that are not related to the donors or the patients themselves.

It isn't sort of a fair thing that you can get a liver a lot faster if you live in Jacksonville and you go to the Mayo Clinic there than if you live in places that might even be better equipped to do it. So I don't think this is a trivial thing to say well, okay, let's just — people live within 25 miles of where they do to do it. I think — and probably, you know somebody like that, someone could do it. But we could at least weigh in to say that there ought to be serious thought given to equalizing the changes of getting organs just in the sense of fairness and justice, it seems to me.

DR. PELLEGRINO: Professor Schneider.

PROF. SCHNEIDER: This brilliantly illustrates the point I was