July 30, 2008

You Don't Own Anything After You're Dead

Another good idea from our friends up in Canada. If this law passes, there would be no more organ donor lists in Ontario. Instead there would be a "not a donor" list. You would have to opt out of rendering your body subject to organ harvesting, unlike the present system (like the one that prevails here in all 50 states) that you have to opt in to being harvested.

Personally, I think everyone should be an organ donor. If you're dead, why shouldn't your body parts be used to save the lives of people who might benefit from them? You're not going to be using those body parts anymore because you're going to be dead.

Organ harvesting creeps people out. People want to think they won't ever die. People want to think that if they die, they're going to come back and need those organs again. They think that doctors will be anxious to kill them to take their livers and adrenal glands. They think that they'll be pronounced dead too quickly and wake up on the coroner's table. Some people have religious objections to organ harvesting or autopsies; their cultural or religious traditions think of that sort of thing as a desecration of a corpse.

So fine. The proposed law has an opt-out provision; you fill out a form, and your body will not be harvested after you die. As I see it, there are three alternative states of existence: 1) you really want your organs to be harvested after you die; 2) you really don't want your organs to be harvested after you die; 3) you don't care enough about the issue one way or the other to bother filling out a form or some other document to let the people who survive you know what your wishes were. This law only affects people in the third category. And it only affects them after they're dead.

Then there's the actually much more valid objection that you own your own body, and it is not the property of the government. I agree with that. The government can't take your body from you while you're alive. But dead people don't have rights. They don't own anything. That's why the government can create laws about things like the proper disposal of human remains -- the dead person no longer owns anything, including her own body, so someone has to do something with it and that is the job of the government.

And again, the law is really already there anyway. You can create a will or a trust while you're alive saying what you want to have happen while you die. And the law will honor those wishes even after you're dead, in order to vindicate and honor the exercise of property rights you made while you were still alive. But if you don't bother to exercise those rights, there has to be a default provision for what happens to your property when you go. That's why there are laws in every jurisdiction, everywhere, for intestate succession of property.

Now, in the U.S., we have a law against the sale of one's own organs, either now or in the future. The idea is that a poor person will sell her kidney for a song and thus be "exploited." Query if that is truly "exploitation" in the same sense that, say, a predatory mortgage loan or a Ponzi scheme is true exploitation. Maybe yes, maybe not. There are also worries that the owner of a right to harvest an organ might do something untoward, like say, kill the donor to harvest the organ early. I can certainly see regulating a market for organs, particularly so the donor and the purchaser do not know each other and the transaction is truly conducted at arms-length. This would require a third party (possibly a government agency) to serve as a broker. There are surely other logistical and legal kinds of issues that would need to get worked out. But I can't think of a moral objection sufficient to justify an absolute ban on truly voluntary, informed organ sales -- particularly organ futures, where you sell the right to harvest the organ after you die of other causes. I can think of logistical hurdles to making that happen, but if I sat down to really think it through, I'd probably also be able to think of ways to overcome those hurdles.

This law is a modification of the law of intestate succession of a particular item of one's property, mainly one's own body. Nothing more. If it's not what you want to happen to your body when you die, you can still control that outcome. Particularly given that we have created a legal scheme in which one cannot sell one's own organs and therefore they must either be given away, burned up, or put in the ground to rot, I think that making the "default" provision that of donation rather than against donation is a great idea.

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