The Ethics of Human Rights (71): The Rights of the Dead

Can the living violate the rights of the dead? Assuming that the dead are gone, they can’t be harmed. So the obvious answer would be “no”. And yet, I’m not alone in feeling uncomfortable about cases such as the death of Whitney Houston some time ago: certain very intimate and private details about her and her death were leaked to the press. So in some sense we believe that the dead deserve privacy.

Also some time ago, there was an uproar about Mormons posthumously baptizing people. Maybe this is harmless: the dead, again, can’t be harmed. If you believe in an afterlife, then things are different of course. For non-Mormon believers, posthumous baptism harms the dead because their wishes and agency are intact after death and are not respected by posthumous baptizers; for Mormons, on the other hand, a lot of good is done because it saves the dead from eternal damnation. But again, it seems like a belief in an afterlife isn’t a requirement for having a feeling of unease about the practice. Even the dead deserve respect of their agency and their choices in life. Posthumous baptism implies a negative judgment about people’s lives. Unintentionally, it also implies a negative judgment of the religion that engages in the practice: if you can’t convince the living to join your church and feel the need to co-opt them after death, then that says a lot about your appeal.

I could cite many other cases: there was this one about funeral disturbances; there’s of course the rule against necrophilia; and the argument against presumed consent for organ donation also relies on the rights of the dead (“my dead body belongs to me and the state can’t just confiscate it for organ donations if I haven’t explicitly consented to this”). Personally, I find this latter invocation of the rights of the dead much less appealing than the other ones I’ve cited: if the right to speech and the right to vote die with us, why not the right to control our bodies? Still, I mention the case because it’s testimony to a widespread belief that the dead have at least some rights.

Many of these discussions are “contaminated” by the effects of certain practices on the living. For example, it can be seen as offensive to living Jews if dead Jews are systematically baptized posthumously. We want to ignore those effects for argument’s sake and in order to determine whether the dead have certain rights. I now think they do.

If I’m right, this supports my previously stated view that human rights are about more than protection against harm – if the dead can’t be harmed and have rights nonetheless, then rights aren’t just about harm.

More on the rights of the dead here and here. More posts in this series are here.

The Ethics of Human Rights (30): Organ Donation and Presumed Consent

Health and survival are human rights. Many people’s health and survival depend on organ transplants. However, there are more people requiring organs than people donating them. Hence, the question of how to increase organ availability, which I have discussed many times before on this blog (see here for instance). My favorite policy is presumed consent : if people during their lifetime don’t explicitly opt-out and deny the use of their organs after death, it is assumed that they consent to this use. There’s evidence that presumed consent raises donation rates by perhaps 20-30%.

However, presumed consent may perhaps not be enough to eliminate the shortage. And although it may solve part of the problem, it may also create some problems. Some people might feel uneasy when the state can automatically decide what happens to their bodies or to the bodies of their loved ones after death. The public might also start to wonder whether surgeons would become too eager to harvest organs, stop life support somewhat early and move the border between life and death (the definition of the moment one dies isn’t an unchanging variable throughout human history). But that’s also a problem with opt-in systems.

Another problem with presumed consent, but also other types of cadaveric donation such as opt-in, is the constraint imposed by the number of people who die in a way that makes their organs available for transplant.

Does all this mean we have to abandon cadaveric donations in general and presumed consent in particular? And rush towards a free market in organs for the living? That could perhaps eliminate the shortage completely, at least for those able to buy the organs and on the condition that there are enough desperate souls “willing” to sell. The latter is of course a condition that’s easily met when we allow international free trade – many places in the world are vast resources of desperateness.

(If you doubt the risk of free trade pushing desperate people to sell their organs, look at Iran. Most donors in Iran are extremely poor. Maybe you think it’s good that poor people have options to do something about their poverty. I agree, but I prefer that they have other options and aren’t forced to commodify themselves, especially when this commodification entails health risks).

I don’t think free organ trade of live donations is a good idea, given the problems with that option outlined here. (Although I might be persuaded by the argument that prohibition of a widespread activity is always futile and a regulated market a lesser evil; e.g., one could offer tax credits for live donations). There’s still a lot of elasticity in presumed consent and the few problems it raises can be solved, in my opinion. The horror story of doctors switching off life support and plundering bodies is precisely that, a story. Countries that are reluctant to implement presumed consent because of such reasons can be convinced, I think, especially given the success of other countries that have it.

Even in countries that have presumed consent and that have therefore increased organ availability, things can be improved. The rights of relatives to veto could be restricted. (Personally, if I would have made the conscious choice of opting in or of not opting out, I wouldn’t be comfortable with the possibility that my relatives have the right to disrespect my will after death). In addition, the transplant system (logistics, transport, availability, procurement etc.) could be made more effective, including in countries that decide to stick with opt in.

Beyond presumed consent of cadaveric donation, live donation of certain organs could be encouraged (though preferably not through market systems). Countries that don’t want to go to presumed consent could make it more likely for people to opt in in a system of cadaveric donation: Israel for example allows opt-in donors and their families to jump the waiting line for transplants when they should need an organ themselves. That’s an interesting idea, but it could throw up some other problems. Also, technology could come to our aid; perhaps in some time we can make organs from stem cells.