Reconsidering the Ethical Framework of DMV-based First-Person Authorization for Organ Donation

Definitions:

Moral Patient: One that possesses the capacity to be wronged or righted.¹ 

Moral Agent: One that possesses the ability to do right and wrong.¹ Moral Status: One that matters morally for its own sake.²

Morally Salient: The extent to which one’s actions are morally noticeable or relevant.⁵⁴

Authorization: Permission for something to happen.⁵³

Legitimate Authorization: Authorization with sufficient reason to believe the authorization is justified and ought to be abided by.

Mere Consent: Consent that does not fulfil the standards of informed consent.

Moral Status of Dead Bodies

To begin a discussion about ethical action toward dead bodies or the deceased, it is important to establish whether a dead body has moral status and can be a moral patient: if a dead body is not a moral patient (in the same way many other inanimate objects are not considered moral patients), then wrongs cannot be done to them.¹ While the moral status of a dead body has not been universally agreed upon, there are numerous laws, ethics publications, and social practices that provide evidence dead bodies are and should be treated as moral patients.^3,4,5,6

Examples of legal and social proscriptions around the world include laws and taboos against necrophilia, cannibalism, and desecration of graves.^7,8,9,10 These actions are commonly seen as wrong, not just because they are upsetting to observers or the living who care about the dead body, but because these actions constitute a wrong done to the dead body because the dead body possesses some intrinsic quality.^11,12,13 Examples of arguments put forward to ground dead bodies’ moral status as moral patients are as follow:

1. The dead body possesses dignity as a result of its previous status as a living human being who possessed dignity that is not lost upon death.^11,14,15,16
2. How a dead body is treated plays an important role in the afterlife of a deceased individual in many religious traditions through time.^{17,18,19,20,21}
3. While the dead body does not have interests, the living person did, and currently living people have an obligation to respect those interests after death.^22,23

A powerful literary example comes from the ancient Greek play Antigone, in which a young girl (Antigone) defies a decree to leave her deceased brother’s body unburied and performs a rudimentary burial.²⁴ Antigone is willing to pay the ultimate price (her own life) to perform what she believes to be her duty to enact certain post-mortem rituals on her deceased brother’s corpse.²⁴ The reader of this play is not confused why Antigone would be willing to sacrifice her own life to bury an inanimate object (as one might be if she sacrificed herself to bury a rock). In fact, the play turns on the idea the audience accepts the premise that certain respects ought to be paid to the deceased. This play’s existence and continued relevance seems to indicate the intuitive pull many feel that dead bodies deserve a certain degree of consideration.

Further, even if a dead body does not have moral status, committing certain actions toward a dead body may be wrong if those actions cause indirect harm to another being with moral status who has an interest in a particular dead body.²⁵ This may be most clearly recognized in the ethics of destroying another’s property.^26,27 One example might be when one child destroys a toy belonging to another child. Many parents would recognize a wrong done, and the first child would likely be instructed to apologize to the second child.

However, the first child is not instructed to apologize to the toy, even though the toy was the thing that was destroyed. While a dead body may not be considered property, certain individuals (such as family members) may have a legitimate interest in the dead body such that performing certain acts to a dead body may constitute a wrong done to an individual with an interest in the body.²⁵

What Dead Bodies are Owed

While dead bodies might be moral patients themselves or deserving of moral consideration as meaningful objects to others who are moral patients, it is not immediately clear what dead bodies are owed or what limits ought to exist for conduct against dead bodies.³ Beyond acts that are categorically proscribed (necrophilia), there may be acts that can be done to a corpse only if the act is in accord with the wishes the deceased individual had when they were living. Some examples include practicing medical procedures on dead bodies, conducting research on dead bodies, and the retention of organs post mortem.^{5,31,32,33,34,35,36,37,38,39} These acts, like those that are categorically proscribed, use the dead body as a means to an end; however, unlike acts that are categorically proscribed, these acts also offer an important good of some kind (fulfilling a pre-mortem wish for parenthood and satisfaction of a spouse’s goals, training healthcare providers, furthering scientific knowledge, providing training tools). While the goods generated are important, they are not so important that one might rightly obtain the good without knowledge that doing so is in accord with the patient’s wishes.^{31,32,33,34,35,36,37,38,39}

Likewise, while respecting the known wishes of the deceased is recognized to be ethically important, it is not so important that the known wishes of the deceased should be categorically respected.⁴⁰ Surely there are cases in which respecting the wishes of the deceased is not morally obligatory, such as when the wish cannot be reasonably fulfilled, the cost of fulfilling the wish is too high, or a significantly important harm is done or benefit failed to be realized as a result of fulfilling the wish. An example might be if the deceased requested their ashes by spread in an unauthorized location or a unreasonably large donation be made in their name. As such, when considering whether an act can be done without knowledge of the deceased’s wishes, one must know whether there are ethically compelling reasons why the act can be done with knowledge it is in accord with the deceased’s wishes.⁴⁰

An important question to answer is how one might know what a deceased person’s wishes are, if the person is deceased and, as a result, unable to communicate them? For adults, as a general rule of thumb in medicine, we rely on informed consent provided by a capacitated patient or, in the case of an incapacitated patient, informed consent provided by a surrogate decision-maker who uses the substituted judgement standard.^{41,42,43,44,45} Particularly important in informed consent is the informed aspect, with requirements that the patient be told the diagnosis, the reason for the recommended treatment, risks, benefits, burdens, and alternatives (including no treatment).⁴¹ Disclosing this information is important because a decision made by the patient that is not fulling informed may not accurately reflect the patient’s wishes.^46,47 As such, mere consent cannot be considered a reliable indicator of patient preferences as any decision made under mere consent is uninformed of potentially relevant information. While more challenging and less concordant with patient wishes, we still attempt to honor patient wishes when they lack decision making capacity all the way to and through end-of-life through reliance on substituted judgment and completion of advance care planning document.^45,48,49,50 While imperfect, these may be the best tools we have to attempt to respect the wishes of incapacitated and deceased patient’s wishes.⁵⁰

Donor Wishes and First-Person Authorization

Society largely recognizes the importance of following patient wishes as it relates to organ donation as well, so much so First-Person Authorization (FPA) is considered legally binding, as set out in the Uniform Anatomical Gift Act, from which much of so called ‘gift law’ is derived.^51,52,75 Proponents of FPA argue FPA respects people’s wishes in that it allows people to make an autonomous pre-mortem decision regarding their organ use post-mortem, with the understanding that informed consent is no longer required once an individual is deceased and mere authorization is sufficient.^55,56 Additionally, the Organ Procurement and Transplantation Network (OPTN) has updated their glossary, shifting from the term “first person authorization” to “first person con- sent,” (FPC) possibly emphasizing the fact that the individual is consenting to a medical procedure as the term ‘consent’ is the one typically used in medical settings when discussing authorization for a medical procedure.^57,58 However, Uninformed FPA/FPC (such as the typical FPA done at the DMV) is not informed consent as little information is provided regarding the procedure or alternatives beyond asking the individual if they would like to be a registered donor. The new verbiage of FPC may acknowledge this as well, as it is merely “first-person consent”, and not first-person informed consent. If this correct, it raises the question of why mere consent is sufficient for authorizing a medical procedure, but informed consent is not necessary.

As it relates to other medical interventions and research, some have argued that mere consent is ethically permissible in certain circumstances based on the certain features (or lack of those features) that may be considered morally salient (such as risk, pain, and invasiveness).^59,60,61 Further, it is largely understood in the law that what should be disclosed is based on what information is material to the patient, and not just the information the clinician believes to be important.^62,63 From these premises, one may conclude that informed consent is required when aspects of the medical procedure would be material to a reasonable person, but mere consent is sufficient when all aspects of a medical procedure are not material to a reasonable person. If this standard applies for consent involving living patients and some post-mortem procedures (such as certain autopsies, practice procedures, and organ retention), then the next question becomes does organ procurement for organ donation have morally salient features such that informed consent is ethically obligatory or are there reasons to believe mere consent is sufficient?^{31,32,33,34,35,36,37,38,39}

To begin, it is important to understand whether there are features of the procedures of organ procurement and transplant that may be morally salient. A few poignant examples supporting the view that there are morally salient aspects related to organ donation include the ethics debate surrounding brain death, normothermic regional perfusion (NRP), and premortem interventions.^{64,65,66,67,68} Additionally, as any clinician who has encountered a family who refutes the concept of brain death or expresses unwillingness to allow premortem interventions to optimize organ donation can attest, these concepts are far from settled in everyone’s mind. As such, we should recognize that certain aspects of the organ donation process are ethically controversial and may be morally salient to some patients and there is not clear consensus on what role surrogate decision makers should play regarding donation in cases where FPA has been provided.⁷³ Given the extent of the debate surrounding these topics, it is clear organ donation involves aspects arguably at least as morally salient as other postmortem interventions that do require informed consent.

That being said, even if there are morally salient aspects of organ donation, it is still possible there are other counterbalancing facts that may make organ procurement with mere consent sufficient. The primary condition often proposed would be if DMV-based FPA increased the number of organ donations so significantly, that the good done removed the need for informed consent that may otherwise be necessary for a controversial medical intervention about which reasonable people may disagree.⁵¹ However, DMV-based FPA has not been shown to increase the rate of organ donation or transplant.⁶⁹

While the exact reasons for this lack of increase in the number of donors remain unclear, the absence of evidence supporting a significant increase in donations undermines a central argument for using DMV-based FPA as legitimate authorization for organ donation. This finding suggests that relying on FPA as a justification for using mere consent instead of informed consent is not empirically grounded. Consequently, the use of DMV-based FPA must be justified on other empirical or ethical grounds, considering that one of its primary purported benefits has not been shown to be true.⁶⁹ The ethical implications are significant, as the justification for bypassing informed consent cannot rest on an assumed increase in organ donations that has not convincingly been shown to occur. Further, the burden of proof for benefit should lie on those who support the use of a controversial medical procedure without informed consent as this represents a diversion from typical ethical medical practice.

Conclusion

Reviewing the primary arguments for why Uninformed FPA is ethically sufficient, many have argued that:

1. Dead people do not have interests; therefore, they are not moral patients, and society does not have obligations to obtain informed consent for intervention on non-moral patient.⁷⁰
2. Using DMV-based FPA as authorization for organ donation, regardless of surrogate decision maker dissent, respects patient wishes, and is therefore legitimate.^72,74
3. DMV-based FPA increases the supply of organ; therefore, the good achieved through the use of DMV-based FPA is sufficiently valuable that the otherwise typical requirements for informed consent prior to medical procedures are not applicable.⁵¹

In this article, I have attempted to address these arguments by demonstrating:

1. We commonly recognize dead people as having moral status, either as moral patients or as meaningful objects important to others with moral status, as evidenced by how we treat dead bodies and the proscriptions against certain acts.
2. Mere consent may be sufficient for uncontroversial procedures, but informed consent is required for procedures with morally salient features about which reasonable people may disagree, as evidenced by the requirement for informed consent for other controversial post-mortem procedures. Further, informed consent is more likely to reflect the person’s actual wishes as a decision made under full information is more likely to accurately reflect a person’s wishes than one made without knowledge of potentially morally salient features.
3. There is no compelling evidence that DMV-based FPA increases the supply of organs and some evidence that it fails to increase the supply of organs and therefore fails to realize the sought after external benefit. Further, the burden of proof lies with those advocating a departure from typical ethical medical practice.

Given that dead bodies are worthy of moral consideration, society accepts the need for informed consent for ethically controversial post-mortem medical interventions, the procedure of organ donation is ethically controversial amongst reasonable people, and there is no evidence that Uninformed FPA increases the rate of organ donation, one may conclude that the use of Uninformed FPA as authorization for organ donation is not consistent with current ethical practice in medicine and there is no compelling reason to violate the ethical standard requiring informed consent for medical procedure. Therefore, Uninformed FPA is not ethically sufficient to proceed with organ procurement without informed consent from the donor prior to loss of capacity or a surrogate decision maker after the donor loses capacity.

With these issues discussed, DMV-based uninformed FPA should be advisory to surrogate decision-makers, not legally binding. FPA should only be legally binding if the prospective donor was informed of all morally salient features of organ donation and agreed to the procedure while capacitated. This could be done at the DMV, but only if there is someone with sufficient medical expertise to discuss the morally salient features with the prospective donor; otherwise, information sharing regarding medical procedures should be reserved for a more suitable venue, such as a doctor’s office. FPA can be a useful and ethically supportable tool to encourage organ donation and allow people to make decisions about their bodies, but only if the individual is doing so with full knowledge of the morally salient features.