Procreation for donation: The moral and political permissibility of "having a child to save a child"

Cambridge Quarterly of Healthcare Ethics

Volumn 10, Issue 4, 2001, Pages 408-419

  Aulisio, Mark P ^a   May, Thomas ^a   Block, Geoffrey D ^b  

^a CASE WESTERN RESERVE UNIVERSITY   (United States)

^b UNIVERSITY OF PITTSBURGH   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CHILD; HUMAN; INFORMED CONSENT; JUVENILE; LEGAL ASPECT; LIVING DONOR; MORALITY; ORGAN TRANSPLANTATION; POLITICS; REPRODUCTION; TRANSPLANTATION;

CHILD; HUMAN; INFORMED CONSENT; LIVING DONORS; MINORS; MORALS; ORGAN PROCUREMENT; ORGAN TRANSPLANTATION; POLITICS; REPRODUCTION; TRANSPLANTS;

EID: 0035538812     PISSN: 09631801     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0963180101004030     Document Type: Article

References (39)

1. 1. Degrees (and even types) of risks will vary greatly for the procurement of different organs and tissue and among prospective donors. This fact does not affect our argument regarding the appropriate moral and political standard that should drive decisionmaking but affects, rather, whether the standard is satisfied in any particular case. Thus, we do not distinguish between these for the purposes of this article.
2. 2. McBride G. Keeping bone marrow donation in the family. British Medical Journal 1990;300:1224-5.
3. 3. See note 2, McBride 1990. It is important to emphasize that we are addressing having a child to save a child cases like that of the Ayala family, and not somewhat related, but importantly different, classes of cases like "having a pregnancy to sell organs or tissue" or "cloning a child to save a child" and so on. We take the case of the Ayala family as paradigmatic of the class of cases with which we are concerned herein.
4. 4. Hart v. Brown, 289 A. 2d 386 (1972).
5. 5. Thus, in 1972, of course, the difference in survival rates for these two groups was much more pronounced. For 5-year graft survival rates of cadaveric, living-related, and living-unrelated donor kidney transplants, see the UNOS 1998 Annual Report, Tables 28 and 30, available at: http://www.unos.org/data/anrpt98/ar98.
6. 6. For an interesting recent study of U.S. kidney-transplant center policies toward children and living kidney donation, see: Spital A. Should children ever donate kidneys? views of U.S. transplant centers. Transplantation 1997;64:232-6.
7. 7. See, for example: Dwyer J, Vig E. Rethinking transplantation between siblings. Hastings Center Report 1995;25:7-12. Dwyer and Vig suggest that the Court's discussion of the "best interest" of Margaret as a justification for allowing donation is merely a "rationalization" for a decision reached on other grounds (p. 9). Indeed, they state that "The obvious and direct question is whether the parents are justified in placing the healthy child at risk in order to meet the needs of the ill child" (p. 10). They then argue that it is moral significance of the "family relationship that justifies imposing some risks" on one child, "provided the expected benefits" to the other are substantial (p. 11). A similar position is taken in: Klepper H. Incompetent organ donors. Journal of Social Philosophy 1994;25:241-55. For efforts to emphasize the moral significance of the family relationship in other contexts, see: Hardwig J. What about the family? Hastings Center Report 1990;20:5-10; and Nelson JL. Taking families seriously. Hastings Center Report 1992;22:6-12.
8. 7. See, for example: Dwyer J, Vig E. Rethinking transplantation between siblings. Hastings Center Report 1995;25:7-12. Dwyer and Vig suggest that the Court's discussion of the "best interest" of Margaret as a justification for allowing donation is merely a "rationalization" for a decision reached on other grounds (p. 9). Indeed, they state that "The obvious and direct question is whether the parents are justified in placing the healthy child at risk in order to meet the needs of the ill child" (p. 10). They then argue that it is moral significance of the "family relationship that justifies imposing some risks" on one child, "provided the expected benefits" to the other are substantial (p. 11). A similar position is taken in: Klepper H. Incompetent organ donors. Journal of Social Philosophy 1994;25:241-55. For efforts to emphasize the moral significance of the family relationship in other contexts, see: Hardwig J. What about the family? Hastings Center Report 1990;20:5-10; and Nelson JL. Taking families seriously. Hastings Center Report 1992;22:6-12.
9. 7. See, for example: Dwyer J, Vig E. Rethinking transplantation between siblings. Hastings Center Report 1995;25:7-12. Dwyer and Vig suggest that the Court's discussion of the "best interest" of Margaret as a justification for allowing donation is merely a "rationalization" for a decision reached on other grounds (p. 9). Indeed, they state that "The obvious and direct question is whether the parents are justified in placing the healthy child at risk in order to meet the needs of the ill child" (p. 10). They then argue that it is moral significance of the "family relationship that justifies imposing some risks" on one child, "provided the expected benefits" to the other are substantial (p. 11). A similar position is taken in: Klepper H. Incompetent organ donors. Journal of Social Philosophy 1994;25:241-55. For efforts to emphasize the moral significance of the family relationship in other contexts, see: Hardwig J. What about the family? Hastings Center Report 1990;20:5-10; and Nelson JL. Taking families seriously. Hastings Center Report 1992;22:6-12.
10. 7. See, for example: Dwyer J, Vig E. Rethinking transplantation between siblings. Hastings Center Report 1995;25:7-12. Dwyer and Vig suggest that the Court's discussion of the "best interest" of Margaret as a justification for allowing donation is merely a "rationalization" for a decision reached on other grounds (p. 9). Indeed, they state that "The obvious and direct question is whether the parents are justified in placing the healthy child at risk in order to meet the needs of the ill child" (p. 10). They then argue that it is moral significance of the "family relationship that justifies imposing some risks" on one child, "provided the expected benefits" to the other are substantial (p. 11). A similar position is taken in: Klepper H. Incompetent organ donors. Journal of Social Philosophy 1994;25:241-55. For efforts to emphasize the moral significance of the family relationship in other contexts, see: Hardwig J. What about the family? Hastings Center Report 1990;20:5-10; and Nelson JL. Taking families seriously. Hastings Center Report 1992;22:6-12.
11. 8. For the full discussion by the Court, see note 2, Hart v. Brown 1972:386.
12. 9. See, for example: Delany L. Protecting children from forced altruism: the legal approach. British Medical Journal 1996;312:240. Delany agrees that best interest of the child donor is the appropriate legal standard but expresses skepticism that, even in bone-marrow donation to a sibling, donation is actually in the child's best interest.
13. 10. The Court appealed to the doctrine of "substituted judgment" as grounding its power to act in cases involving legal incompetents and, by extension, to minors (see note 2, Hart v. Brown 1972:289). More properly understood, "substituted judgment" has come to have a related, but different, meaning that we discuss later (see the section entitled "Moral and Political Propriety of the Best Interest Standard," pp. 412-413).
14. 11. For example, the Court invoked the testimony of a psychiatrist in its rationale, stating that "the donor has a strong identification with her twin sister" and He (the psychiatrist) testified that if the expected successful results are achieved they would be of immense benefit to the donor in that the donor would be better off in a family that was happy than in a family that was distressed and in that it would be a very great loss to the donor if the potential recipient were to die from her illness (Hart v. Brown, 289 A. 2d 389, 1972). For direct appeals by the Court to the doctrine of "grave emotional impact," see note 2, Hart v. Brown 1972:390-1.
15. 12. See note 2, Hart v. Brown 1972.
16. 13. See Curran v. Bosze, 566 N.E.2d 1319 (Ill. 1990), for the Court's holding and rationale. This case received a great deal of media attention at the time (for example, see Time Magazine, 10 Sept 90, Vol. 136, Issue 11, p. 70).
17. 14. See note 13, Curran v. Bosze 1990.
18. 15. For a discussion of North American pediatric transplant centers views of minors and bone-marrow donation, see: Chan KW, Gajewski JL, Supkis D, Pentz R, Champlin R, Bleyer WA. Use of minors as bone marrow donors: current attitude and management. The Journal of Pediatrics 1996;128:644-8.
19. 16. Indeed, the Court held that (1) the doctrine of substituted judgment was inapplicable, and (2) it was not in the best interests of the twins to submit to the bone marrow harvesting procedure." See note 13, Curran v. Bosze 1990:1319. The Court rightly noted that the doctrine of substituted judgment concerns attempting to respect the values and preferences of a once competent, now incompetent, person in decisionmaking, thus implying that it had no implications for a case like Hart v. Brown in which it was, as we have seen, invoked. We discuss "substituted judgment" in more detail in the section entitled "Moral and Political Propriety of the Best Interest Standard," pp. 412-413.
20. 17. See note 13, Curran v. Bosze 1990:1343.
21. 18. Strunk v. Strunk, Ky., 445 S.W.2d 145 (1969).
22. 19. See note 18, Strunk v. Strunk 1969:145.
23. 20. See note 18, Strunk v. Strunk 1969:146.
24. 21. See note 18, Strunk v. Strunk 1969:146.
25. 22. As we have seen, the most powerful challenges contend that the "best interest" standard is excessively individualistic and ignores important moral relationships between family members (see note 7, Hardwig 1990; Nelson 1992; and Dwyer, Vig 1995). These relationships are said to establish moral obligations on the part of some persons to donate, which obligations the courts should take into account in adjudication (see note 7, Dwyer, Vig 1995). Though we are sympathetic to the views expressed, the problem with this line of argument is that it must presume a particular substantive view of the good life that should be taken into account by the courts. The societal political framework within which these decisions must be made, however, does not (indeed may not) presume such a privileged view of the good, no matter how widely accepted or plausible it may be.
26. 23. See Cardoza's famous decision in Schloendorf v. Society of New York Hospital (1914), a landmark case for the right to refuse treatment and the importance of informed consent in medicine.
27. 24. For outstanding comprehensive discussions of the importance of informed consent in medical decisionmaking, see: Appelbaum PS, Lidz CW, Meisel A. Informed Consent: Legal Theory and Clinical Practice, London/New York: Oxford University Press, 1887; and Faden RR, Beauchamp TL. History and Theory of Informed Consent, London/New York: Oxford University Press, 1996.
28. 24. For outstanding comprehensive discussions of the importance of informed consent in medical decisionmaking, see: Appelbaum PS, Lidz CW, Meisel A. Informed Consent: Legal Theory and Clinical Practice, London/New York: Oxford University Press, 1887; and Faden RR, Beauchamp TL. History and Theory of Informed Consent, London/New York: Oxford University Press, 1996.
29. 25. See Buchanan AE, Brock DW. Deciding for Others: The Ethics of Surrogate Decision-Making, London/New York: Cambridge University Press, 1989.
30. 26. See Joel Feinberg's outstanding discussion of the harm principle and liberty in: Harm to Others: The Moral Limits of the Criminal Law, London/New York: Oxford University Press, 1986.
31. 27. See note 4, McBride 1990:1224-5.
32. 28. See Henshaw SK. Unintended pregnancy in the United States. Family Planning Perspectives 1998;30:24-9, 46.
33. 29. See Aulisio MP. In defense of the intention/foresight distinction. American Philosophical Quarterly 1995;32:341-54; and Aulisio MP. On the importance of the intention/foresight distinction. American Catholic Philosophical Quarterly 1996;70:189-205.
34. 29. See Aulisio MP. In defense of the intention/foresight distinction. American Philosophical Quarterly 1995;32:341-54; and Aulisio MP. On the importance of the intention/foresight distinction. American Catholic Philosophical Quarterly 1996;70:189-205.
35. 30. For a general and concise discussion of the principle of double effect and its applications in healthcare, see: Beauchamp TL, Childress JF. Principles of Biomedical Ethics, 3rd ed. London/ New York: Oxford University Press, 1989:127-34.
36. 31. Surely, for example, a societal prohibition on unintended pregnancies being brought to term would be unjustified, even if data conclusively showed that children resulting from unintended pregnancies were more likely to be abused or neglected.
37. 32. It should be noted, however, that even for this category of cases determinations of best interest of the prospective donor child must be made on a case-by-case basis because there could be complicating factors that make, on balance, even the harvesting of bone marrow not in the prospective donor child's best interest.
38. 33. Unless, of course, an existing close relationship develops over a number of years, as it may in a having a child to save a child kidney-donation case.
39. 34. It should be noted, of course, that as outcomes for cadaveric, living-unrelated, and various types of living-related (parent vs. sibling, etc.) organ donation become more even (as they have, for example, for kidney transplant), it is harder to justify donation from a minor in light of these alternatives. This, obviously, does not uniquely apply to having a child to save a child cases but rather it applies to all cases of minors and organ donation.