The Quiet Road

I may be wrong here, but I’m fairly certain that an historic first was recently marked. Gordon Brown, the British Prime Minister, actually made a half-decent proposal. I believe it’s his first since taking office, but I’m open to correction on that.

I’m afraid he didn’t surrender himself to the International Court of Human Rights for his involvement in the illegal invasion of Iraq. No, what he did was a little less dramatic, but a good idea all the same; he backed a radical change in the way organ donation works in the UK.

As it stands now, and this is the case in Ireland too, a person must place their name on the organ donation registry if their organs are to be eligible for use in transplant surgery post mortem. Brown appears to be pushing towards a system of “presumed consent” whereby your organs are automatically considered available unless you place your name on an “opt-out” registry, or unless your next of kin lodges an objection at the time of your death.

This is a great idea. Over the course of a decade it will save ten thousand people from a painful and premature death and will relieve the suffering of more than a hundred thousand others. In my view, Gordon Brown should be strongly supported on this issue (at the very least, wait until he’s talking about something else before you throw those eggs). It represents a positive step for British society and, like one or two other social policies which have been running successfully for years in the Netherlands, should really be adopted here in Ireland and elsewhere around the world.

Naturally, there are those who object. And seeing as how I’m usually on the side of the objectors when it comes to the plans of British Prime Ministers, I’m willing to listen to those objections and see if maybe there’s something I’ve missed. There doesn’t appear to be.

The Libertarian Position

What we do have is an incoherent libertarian position regarding ownership of the body. By “presuming consent”, the state is essentially asserting ownership of a person’s body; an assertion that must be denied. I believe that’s the essence of the libertarian objection, though I’m willing to be corrected on that should a libertarian pass through.

The trouble is, the objection is based upon two fundamental misconceptions.

The first is that ownership extends beyond death. It clearly doesn’t. Upon death, all ownership is transferred. It’s called “inheritance” and we’ve developed all manner of complicated rules by which it occurs. While a person is alive, I believe they should indeed be considered the “owner” of their body (in whatever sense that might mean in this context). This is one of the reasons I feel, for example, that drug prohibition should be opposed, though that’s a subject most right-wing libertarians find it politically expedient to ignore. But once a person is dead…? Well, it is simply not possible for a dead person to own anything. Not even their own body.

The people who are considered legal owners of the body, one supposes, are the next of kin. And rather conveniently, the policy proposes to leave the decision in their hands. They may insist that the body remain intact if that is what they wish. This right is not removed, the next of kin may still assert absolute “ownership” if they choose. And the opt-out registry, just like a will, provides a legal facility to those who may not trust their next of kin (for instance). The libertarian argument is bunk.

And that’s without getting to the second fundamental misconception. Which is, that “the state” is taking ownership of the organs. It’s not. At least, not in any sense that matters. But because “the state” is the big bad wolf of libertarianism, it tends to be crowbarred into a lot of arguments where it doesn’t really belong. It’s a symbol of evil. A rallying point. As such, the emotional power it carries as a symbol is worth deploying even when it lessens the coherence of the argument.

All the same, that’s exactly what it does.

The state is not asserting any ownership at all. It is merely setting the rules by which ownership is transferred. By passing laws, it acts as arbitrator, just as it does in all cases where inheritance laws are complied with.

What I do concede is that right now, the shortage of suitable organs means that a selection process must be undertaken, and in that sense the organs are “allocated” by the state (or a state agency). A side-benefit of this new policy, however, would be to eliminate even that element of “state” intervention. Essentially it would have the practical effect of further liberating the transplant process from politics. You’d imagine that’s the kind of thing that would surely be applauded by libertarians.

Different voices

A successful organ transplant can, in essence, take an organ that was otherwise destined to rot in the ground and instead use it to give life to a dying person. This is about as uncontroversially positive a thing as I can think of. Sure, we can get all abstract about the demographic dangers of medical advancement, and we can question the cost:benefit ratio of transplants as compared with other medical programmes. We can do those things. But when all’s said and done, transplant cases usually boil down to taking an individual whose daily life is characterised by significant physical pain; and relieving them of that pain.

I mean, it’s just your basic Good Thing, and if we can afford it but aren’t doing it because of a shortage of organs, then we need to change that immediately. A system of presumed consent in tandem with the aforementioned opt-outs would be a simple, effective and socially just method of achieving this.

What has frustrated me a little about the debate on this issue, however, hasn’t been the libertarian objection. Instead it’s been the tone of some of those who actually support the policy change. “Living people matter. When you’re dead, you’re dead” was probably the worst offender (unsurprisingly it came from the rather silly, and mystifyingly well-regarded by some, Polly Toynbee) but even the good guys got in on the action as Justin illustrates in “Monkeys and the organ minder“.

Both articles are guilty of one of the cardinal sins of social policy debate. And they’re symptomatic of a wider trend on this issue. They propose (or in this case, support) a policy without giving any real thought to the impact of the policy on those directly affected. Indeed, they go so far as to caricature and trivialise them. I find this problematic.

We’re dealing here with a significant shift in social policy that will have an impact on two groups of people. Firstly and most obviously, those in need of transplanted organs. The policy is essentially (and rightfully so) tailored to them and is primarily aimed at serving their interests. However the second group of people who will be routinely and significantly affected by this policy is the recently bereaved. This is problematic because we’re talking about a group of people who will be under great stress and prone to irrationality. People who are potentially experiencing the worst trauma of their life. We need to place a sensitivity to this fact right at the core of our thinking on this issue. And those who fail to do this are, to be honest, speaking in a voice unpleasant to my ears.

The Psychoanalytic Position

In 1917 Sigmund Freud published Mourning and Melancholia (it can be found in Volume 14 of the Complete Works). It’s a landmark paper and represents the culmination of two years working towards an understanding of grief and depression (to use modern terminology). Despite its age, however, I contest that it is as good an explanation of the grieving process as exists…

It is also well worth notice that, although mourning involves grave departures from the normal attitude to life, it never occurs to us to regard it as a pathological condition and to refer it to medical treatment. We rely on its being overcome after a certain lapse of time, and we look upon any interference with it as useless or even harmful.
[…]
In what, now, does the work which mourning performs consist? I do not think there is anything far-fetched in presenting it in the following way. Reality-testing has shown that the loved object no longer exists, and it proceeds to demand that all libido shall be withdrawn from its attachments to that object. This demand arouses understandable opposition — it is a matter of general observation that people never willingly abandon a libidinal position, not even, indeed, when a substitute is already beckoning to them. This opposition can be so intense that a turning away from reality takes place and a clinging to the object through the medium of a hallucinatory wishful psychosis. Normally, respect for reality gains the day. Nevertheless its orders cannot be obeyed at once. They are carried out bit by bit, at great expense of time and cathectic energy, and in the meantime the existence of the lost object is psychically prolonged. Each single one of the memories and expectations in which the libido is bound to the object is brought up and hypercathected, and detachment of the libido is accomplished in respect of it. Why this compromise by which the command of reality is carried out piecemeal should be so extraordinarily painful is not at all easy to explain in terms of economics. It is remarkable that this painful unpleasure is taken as a matter of course by us. The fact is, however, that when the work of mourning is completed the ego becomes free and uninhibited again.

Sigmund Freud | Mourning and Melancholia

We can quibble about the details and about the terminology (I take a much more Jungian view of libido, for instance, than many psychoanalysts) but ultimately it’s a pretty damn accurate description of the grieving process, as I feel certain anyone who has gone through it will attest. We deny the death. Initially it may be quite overt… “No, you’ve got that wrong. I don’t believe you!” even though we have no reason in the world to doubt the news we’ve been given. Usually that overt denial passes quite rapidly. In Freud’s words, “respect for reality gains the day”. Beyond that, it can take a long time to ‘carry out the work of mourning’. Our unconscious may be filled with memories of the deceased, and each one requires re-evaluation based on this new information. Much of this is indeed unconscious, but plenty of it isn’t. We experience it as dreams of the person, and as a tendency to “think about them” a lot in the immediate aftermath of their death. Notably, as time passes, those thoughts become less painful.

This is how we grieve, and any social policy designed to deal with grieving people needs to take it into account. If it doesn’t, then it runs the risk of being a monstrous attack on the vulnerable. What’s vital to take away from this account of the grieving process is that there is a very real period during which a recently bereaved person will overtly deny the death. In most people it lasts mere seconds… long enough to say “I don’t believe it…” then Bang! it hits you. But in others it can drag on. This isn’t a choice they make, and it doesn’t make them ‘perverse’ or ‘weird’ in the words of one commentator. It’s how grief works in some people. Polly Toynbee talks about the forces of superstition and reaction and about overcoming them with the “spirit of enlightenment”. What? Overcoming human grief? What’s next? A war on terror?

The point is that a grieving person may well suffer a total failure in reality-testing. This happens often enough that we consider it a natural reaction to bereavement, albeit at the extreme end of such reactions. Such people may — and often do — fixate upon the integrity of the body and insist that the dead person will soon awaken. This period may continue beyond the time at which organ harvest becomes impossible. And an attempt to interfere with this process could well be needlessly* traumatic for the already traumatised person.

Now, nobody is suggesting that these people be deprived of the right to “opt-out”. I’m not trying to build a straw man here. I’m merely suggesting that those who speak in tones close to contempt about the irrational behaviour of the recently bereaved are failing to demonstrate the sort of basic compassion that should inform any discussion of social policy in this area.