William Simkulet sent the following response on January 28, 2103. Published on February 6, 2013.
Scarcity, the Lifeboat, and Bioethics: A Response to Tom Koch
In Thieves of Virtue: When Bioethics Stole Medicine, Tom Koch contends the field of bioethics fails to live up to a what he characterizes as a promise found in early bioethics literature to construct a universally accepted set of moral values. Bioethics has, in fact, adopted a robust set of values characterized by a respect for patient autonomy and fair distribution of scarce medical resources. These values, and their execution, are a matter of debate in contemporary bioethics, but to declare bioethics a failure because there is not universal consensus is akin to declaring geography a failure because of the persistence of the Flat Earth Society.
Koch holds bioethics to an unreasonable standard: universal acceptance. The goal of early bioethics was to restore the public's faith in the medical community after infamous failures in medical paternalism and what Engelhardt describes as a "moral vacuum" that arose with moral pluralism. (H. Tristram Engelhardt, Jr., 2011, "Confronting Moral Pluralism in Post Traditional Western Societies: Bioethics Critically Reassessed," The Journal of Medicine and Philosophy 36:3, 243-260; also Bioethics Critically Reconsidered: Having Second Thoughts, 2011, H. Tristram Engelhardt, editor, Springer). A recent poll by Gallup suggests that contemporary bioethics has largely succeeded in this more modest goal, with the honesty and ethics of nurses and medical doctors both rated as very high by at least 70% of those polled. (Honesty/Ethics in Professions, 2012, http://www.gallup.com/poll/1654/honesty-ethics-professions.aspx) A more reasonable standard by which to judge bioethics is by how successful it has been at bringing about morally desirable outcomes and curtailing immoral actions by medical professionals.
Here I discuss three related topics in bioethics central to Koch's criticism of it: scarcity, lifeboat ethics, and whether there is a morally relevant distinction between killing and letting die. I argue the natural scarcity of medical resources requires bioethics concern itself with just distribution of scarce resources, or lifeboat ethics, and that physicians have a strong moral obligation not to let patients die when they can avoid it at little cost.
I. On Scarcity
One of the central themes of Koch's book is his criticism of bioethics for engaging in lifeboat ethics, and contends that the scarcity that demands lifeboat ethics is artificial. Scarcity is natural, he claims, when it occurs in nature and is outside of anyone's control, but artificial if it is the direct result of actions by persons. Koch asserts "scarcity is rarely natural", and that the scarcity of healthy organs for transplant is an artificial scarcity. (101) The primary problem with this claim is that it is false; it is an uncontroversial and easily verifiable fact that healthy human organs are naturally scarce; not every human body is born with a healthy heart, for example. Of course, people contribute to this scarcity through accident, negligence, and ignorance, but this additional scarcity doesn't make this shortage of organs any less natural, or any less demanding.
Furthermore, the term "artificial scarcity" is traditionally used to describe "the scarcity of items even though the technology and production capacity exists to create an abundance." (accessed 1-27-2013, http://en.wikipedia.org/wiki/Artificial_scarcity) It is uncontroversially true that healthy organs are not artificially scarce in this sense.
Fortunately, advances in organ transplant allow physicians to combat the natural scarcity of organs by redistributing them from the dead to the dying. Presumably, Koch means to say that healthy organs are "artificially scarce" because they are merely artificially valuable - that without human intervention in the form of organ transplant, organs would only be valuable to their original owners; but this distinction is inconsistent either of the definitions of artificial scarcity discussed above, and irrelevant to whether bioethics ought to be concerned with the just distribution of organs. It is uncontroversially true that there is a scarcity of healthy organs for transplant, and short of some miraculous medical breakthroughs, this natural scarcity will persist for the foreseeable future. Thus, bioethics must deal with the equitable distribution of resources; this is to say that bioethics needs to engage in lifeboat ethics.
II. On Lifeboat Ethics
Koch distinguishes between two kinds of lifeboat ethics, what he calls "ethics in the lifeboat" (LBE1 from now on) and "ethics of the lifeboat," (LBE2 from now on) where the former concerns how to distribute limited resources, and the latter concerns the question of why there is shortage. (78-79) He contends bioethics has focused on LBE1 to the detriment of LBE2. Koch is right that, metaphorically, bioethics has spent too little time constructing better lifeboats. Although scarcity of medical resources may be unavoidable, there are steps that could be taken to reduce this scarcity and bioethics has largely failed to pursue these steps.
Koch criticizes LBE1, contending that the metaphor "assumes the limits of the lifeboat are exigent and unavoidable." (78) However, as you read this there are more patients in need of healthy organs than extra healthy organs to transplant. Whether this situation was avoidable is a question for LBE2. As for its exigency, if medical professionals fail to allocate resources, they let people die.
I admit to being puzzled as to why Koch is skeptical about the urgency faced by physicians. Perhaps the explanation can be found in Koch's treatment of the case of the William Brown, a famous case concerning actual lifeboats. After this ship struck an iceberg, half of the passengers we brought aboard a lifeboat, threatening to capsize it. Rather than risk the lives of all those on the boat, the crew threw 16 passengers overboard, killing them. (77-78, 82-110) Koch believes, but does not argue, that there is a significant moral difference between killing and letting die, all else being equal. Rather than kill these passengers, then, Koch might believe the crew should never have brought them aboard the lifeboat in the first place. When we apply this reasoning to bioethics as a whole, we have a map for why he might believe LBE1 isn't morally demanding: If we have no moral obligation to save the lives of the dying, then allocation of resources is optional, not obligatory. However, even if there is a substantial moral distinction between killing and letting die, certainly it does not follow that medical professionals have no moral obligation to save lives where there is little or no cost to do so. To do otherwise would be a moral monster. (James Rachels, 1979, "Killing and Starving to Death", Philosophy, 54:208, 159-171)
III. Killing and Letting Die
In my review of Koch's book, I contend his failure to defend the distinction between killing and letting die undermines his criticism of bioethics. This failure is perhaps easiest to see in his criticism of the adoption of the term "brain death." When faced with the natural scarcity of healthy organs, medical professionals adopted the term so that they could harvest the organs of donors in irreversible comas. (58-59) Koch argues the adoption of the term was in part an excuse to harvest healthy organs. The goal, he said, was both humanitarian and economic, as transplantation was lucrative for the professional. (60) While the exigent need for organs was certainly the catalyst for the adoption of the term, medical professionals certainly believed that such patients were already dead. Don Marquis distinguishes between three theories about what makes something morally valuable, and wrong to kill: (i) being biologically human, (ii) being psychologically a person, and (iii) having a possible future of value. (Don Marquis, 1989, "Why Abortion is Immoral," The Journal of Philosophy, 86:4, 183-202) "Brain dead" bodies apparently satisfy (i), but fail to satisfy either (ii) or (iii). Marquis argues that (i) is arbitrary and cites its unreasonable implications; for example human cancer cell cultures are biologically human, but certainly have no right to life.
Medical advancements have made it possible to keep bodies alive, sometimes indefinitely, despite substantial irreversible damage to the brain. Before this, the question of whether these bodies were persons was largely irrelevant as the complete cessation of bodily functions would soon follow. Following these advancements, although keeping bodies alive was expensive and wasteful, there wasn't sufficient impetus to change the definition until it became clear this misclassification threatened the life of potential organ recipients. Patrick Lee and Germain Grisez present a simple thought experiment to test our intuitions about brain death; they ask us to imagine it was possible to keep both the head and body alive after decapitation. Analytically both entities could not be the same person they were before decapitation. Because human beings are rational animals, they contend they body isn't even human. ("Patrick Lee, Germain Grisez, 2012, Total Brain Death: A Reply to Alana Shewmon," Bioethics, 26:5, 275-284)
Underscoring Koch's criticism of the adoption of "brain death", he contends that definition of "brain death" was insufficient, as it misdiagnosed some comas as irreversible even though these patients later regained consciousness. Koch asks how the adoption of "brain death" could be ethical if some patients died who would otherwise have lived. (63) "Certainly it violates the Hippocratic oath's promise to do no harm," Koch says. In my review, I call this criticism absurd. Here Koch contends that an unintentional and unforeseen harm violates the Hippocratic oath, and is concerned exclusively with the consequences, rather than intent, of the physician. Most surgeries carry with them risks to a patient's health and life, and many surgeries end in death; on Koch's view any physician who has lost a patient in during surgery has violated the Hippocratic oath, even if they intended the surgery to be a success, and had every reason to believe it would be. This is absurd.
Rather than risk their supply of organs, Koch contends, bioethicists rationalized their unintentional killing of innocent persons by adopting a form of utilitarianism where the killing of weak persons was justified for the benefit of others. (63-64) As consequentialists, (some) utilitarians don't draw a distinction between killing and letting die, so if a physician harvested the organs from one person, killing her, to save the lives of five others, she is prima facie justified. Of course this is prima facie morally objectionable. It is also not what occurred in the misdiagnoses cases Koch agonizes over. In misdiagnoses cases, physicians believed their patients were dead, and their bodies no longer persons - just like the headless body from Lee and Grisez's thought experiment. These physicians did not trade one person's life for the lives of others. In adopting "brain death" terminology, bioethicists are not taking a stance on whether killing is morally equivalent to letting die and judging certain people to be less worthy of care than others; rather they are diagnosis persons as dead despite the fact that parts of their anatomy are still functioning. Fortunately, making such a distinction can lead to saving the lives of others by allowing doctors to better allocate scarce medical resources.
The bioethics literature on killing and letting die is not about trading one life for another, but about whether letting die is as bad as killing. James Rachels famously argues that if there are the same reasons for a as there are for b, then a and b are morally equivalent, neither is preferable to the other. (Rachels, 1979) Rachels contends that, all else being equal, killing and letting die are morally equivalent. (James Rachels, 1975, "Active and Passive Euthanasia," The New England Journal of Medicine, 292, 78-80; also James Rachels, 2001, "Killing and Letting Die," Encyclopedia of Ethics, 2nd edition, ed. Lawrence Becker and Charlotte Becker, New York Routledge, vol. 2, 947-50.) For example, Rachels argues that, all else being equal, active euthanasia is morally equivalent to passive euthanasia because there are the same reasons for and against killing someone as there are for and against letting them die, all else being equal. Abolishing this distinction is important because in most cases all else is not equal: passive euthanasia causes substantially more pain and suffering than active euthanasia. If passive euthanasia is morally acceptable, then active euthanasia ought to be as well. If active euthanasia is unacceptable, so too should passive euthanasia be.
Although we have a strong commonsense moral intuition that in most cases killing is far worse than letting die, this is not inconsistent with their equivalence when all else is equal, nor does it commit us to a utilitarianism where it is morally acceptable to kill one patient to save others.
Koch contends that when physicians harvested the organs from a misdiagnosed patient they have violated their Hippocratic Oath by doing harm. But if killing and letting die are morally equivalent, then these physicians would be violating their oath by letting people die as well. By letting these organs go to waste, as Koch seems to advocate, then all else being equal, a physician would be as blameworthy for letting her patients die as if she had killed them herself.
Lastly, when discussing the Hippocratic Oath, Koch quotes "First, do no harm." (27, 58) However, this phrase appears nowhere in the oath itself. A similar phrase appears in Hippocratic Corpus, requiring that a physician must do good for her patient and do no harm. (accessed 1-27-2013, http://en.wikipedia.org/wiki/Primum_non_nocere) Translations of the Hippocratic Oath similarly require that physicians act for the good of their patients and to not harm them (both requirements are found within a single sentence), and does not seem to prioritize one over the other. (accessed 1-27-2013, http://en.wikipedia.org/wiki/Hippocratic_Oath, accessed 1-27-2013, http://www.nlm.nih.gov/hmd/greek/greek_oath.html)
I've argued that many of the central claims found in Thieves of Virtue: When Bioethics Stole Medicine are false. Koch contends contemporary bioethics an "abysmal failure" because it fails to live up to a promise found in early writings in bioethics. (6) Set aside that this is a ridiculous standard by which to judge a branch of applied ethics, and that for Koch nothing short of universal acceptance of a normative ethical theory would satisfy this promise; I've argued that bioethics has largely succeeded in its goal of restoring the public's trust in medical professionals that had been lost by the beginning of the bioethics movement.
One of Koch's central criticisms of bioethics is that it is too concerned with LBE1, which assumes a scarcity of resources and a moral urgency with regard to their distribution. He claims this scarcity is artificial; here I've shown this scarcity is natural. Remarkably, Koch questions the urgency regarding distribution of scarce medical resources; here I've argued that even if one believes there is a substantial moral difference between killing and letting die, physicians have a strong moral obligation not to let innocent people die if they can easily avoid it without harming others.
Koch criticizes physicians for harvesting organs from patients misdiagnosed as brain dead, contending that to do so violates the Hippocratic Oath -- a set of bioethics values -- because it violates the rule "First, do no harm", a phrase not found in the oath but commonly misattributed to it. This standard is absurd; it would prevent any physician from acting in any way that could possibly harm a patient, regardless of whether the physician believes it might. Any risky surgery would be forbidden, as would breathing the same air as your patient -- for fear you might unwittingly transfer a pathogen to them. Koch characterizes misdiagnoses of "brain death" as some kind of utilitarian bargain, where physicians are willing to sacrifice unworthy, weak patients to benefit others. This is far from accurate; there is always a risk of misdiagnosis, but the Hippocratic Oath requires physicians act for the good of their patients to the best of their ability. Certainly this involves acting on the best medical information one has available, despite the relatively low likelihood of misdiagnosis.
Despite the bluster, factual inaccuracies, and egregious criticisms of contemporary bioethics, Koch should be praised for drawing attention towards what he calls the "ethics of the lifeboat." Contemporary bioethics has not done enough to reduce the natural scarcity of medical resources by advocating for increased blood and organ donation, nor has it done enough to draw attention to the artificial scarcity of medical facilities, equipment, and personnel. To do so would not, as he suggests, eliminate the need for "ethics in the lifeboat", but it would, metaphorically, put us in a better lifeboat, and actually lead to less death.