In the United States most public policy decisions now are mostly decided by a form of moral consequentialism. In other words, decisions are made and their morality is judged on the basis of a calculation about the consequences, benefits and costs, that will foreseeably flow from any particular decision. A good decision is usually thought to be one that does the most good for the greatest number of people. The system is called ‘consequentialism’ because decisions are governed by a calculation concerning the consequences or results or effects of the actions under consideration rather than concerning their effect on the character of their agents or concerning some intrinsic quality of the acts apart from their consequences.
There are more and less sophisticated versions of moral consequentialism. One version is quite materialistic. It considers consequences that can be easily seen and measured. It considers ‘good’ those things that contribute to material life, such as food, potable water, shelter, clothing, medical care, and, in general, physical well-being. As a rule, if morally-significant consequences are judged in such material terms, an action will be deemed good if it tends to increase physical wealth and health.
More sophisticated versions of consequentialism define consequences more broadly and add to the calculation of benefits and costs relatively intangible artistic, intellectual, and even moral goods. Such sophisticated consequentialists often frame their own arguments in materialistic terms, by arguing positively that, on the one hand, liberal education, learning, private virtues, and the fine arts in the long run contribute to a people’s material wealth and health, and that, on the other hand, a philistine or narrow materialism will produce less wealth and human happiness. Despite often using materialistic arguments, sophisticated consequentialists sometimes do value intangible goods very highly.
There are rival moral systems, often called deontological and teleological, which have strong support among moral philosophers and theologians. For the moment, however, I am mainly concerned with understanding how consequentialism affects moral reasoning and public policy in our society in one particular area. I believe in fact that both consequentialism and also its public policy effects, which I will outline, are frequently harmful. But before looking at rival or alternative systems, it should be useful to understand how the system that is practically in place is now in fact operating. The particular area and issue I will consider here is the determination of death and the definition of the moment of death.
In the matter of determining the moment of death, when decisions are largely made with consequentialist assumptions and arguments in place, there are two powerful factors that influence the issue. The legal definition of death in most places within the United States has changed over the last century and the change largely has been, and I believe will unfortunately continue to be, made under the influence of these two powerful factors.
The first factor is the national system that governs organ extraction (or ‘harvesting’) and which supplies the organ transplant system. The organs in question include vital organs, such as the heart, lung, and kidney, and non-vital organs, such as skin and corneas. The vital organs in question also include paired (lung and kidney) and not-paired (heart and liver) organs. The ‘donor’ of an unpaired, vital organ obviously dies after his ‘donation’, if he is not already dead, so the organ transplant system is intimately connected with the definition of the moment of death, particularly since the supply of transplantable organs is increased, and the quality of those organs is improved, by one definition of ‘death’, while the supply would be restricted and its quality compromised by another.
I use the term ‘system’ because in fact the regnant assumptions have shaped laws, achieved the support of powerful professional organizations, enlisted the cooperation of state and national governments and private charities and organizations, engaged in extensive public relations activity, and even have established a national system for doling out extracted organs and judging the urgency and worthiness of their potential recipients. The system is highly organized and politically powerful, and its moral foundations are almost never challenged.
The consequence most sought by this system is certainly desirable: namely, to extend life and health for sick people. If in fact the system were radically altered, due to changed understanding of the moment of death, there would be very large and serious material consequences. Those consequences would affect hospitals, medical professionals and their organizations, and of course the persons who would be adversely affected by a more restricted supply of transplantable organs.
The second powerful factor that affects consideration of the moment of death is the huge cost of providing medical and other care for persons who are or have been near death and whose medical situation involves large, and often ongoing, expense. Suppose Jane’s brainwave activity is minimal and indicates no likelihood of future improvement. If Jane is determined to be dead, medical and other kinds of care may end forthwith and costs of many kinds will cease to accumulate. If, however, Jane’s cardiopulmonary activity continues, and she is not determined to be dead, then medical and other kinds of care should continue, and costs of many kinds will accumulate.
Now medical care is a good the demand for which seems virtually infinite while the supply is limited. In such cases the scarce good must be distributed or rationed according to some limiting system. One way to control access to medical care is by use of price and cost: a heart-lung machine, antibiotics, and nursing care could be provided to those who are able to pay. To some extent the price of the goods in question might be set by normal marketplace processes involving supply and demand, though the market often may not function well due to regulation, monopolies, and the like.
Alternatively, access might be limited by use of waiting lists: the needed care could be rationed on a first-come/first-served basis or to those who have been waiting longest or to those judged (by someone or some group) to have the most urgent need. Or again, the system might limit access by the use of power: the influential and powerful often are able to jump lines and obtain access to care whatever the normal system for rationing care to others. In the United States all of these systems of control (cost, waiting, perceived need, influence) are in play. In any case, making very expensive long-term care more likely by making determination of death more difficult would probably entail very large expenses, waiting lists, or the use of power and influence to obtain treatment and care.
As an aside, it is noteworthy that the costs entailed by changes in policy concerning the determination of death are rather public and likely to be keenly felt. The other main life-and-death issue before the public, namely abortion, has costs that are much more hidden and privately experienced. The massive practice of abortion over decades has radically altered the population of future taxpayers and restricted the size and age of the work force. But the connection between an individual abortion and its effect on national wealth is almost entirely invisible.
Both of the factors noted as affecting decisions concerning death (organ supply and health care costs) push the system towards a liberal or lax approach to the issue. It is in the material interest of many to make it easy to determine clearly the moment of death, to determine that moment so as to increase the supply of ‘harvestable’ organs, and to determine that moment so as to minimize health care costs. Within a consequentialist moral system, a lax approach to death decisions will tend to prevail. Put bluntly, the system will tend to encourage cheap rather than expensive deaths and deaths that will increase the supply of organs for transplantation.
But of course a purely consequentialist system could easily be pushed much further. The costs of long term medical care are heavy in many other cases, where no one assumes death has already occurred. Why should not death be decreed and imposed in such cases, if the central moral issue is a calculus of material costs and benefits? Why should not medical care be withheld in cases where costs are likely to rise above a given level even in cases subject to successful, albeit very expensive, treatment? Why should the organ supply not be enriched by the execution of young criminals, whose incarceration itself imposes very heavy social costs, and by the harvesting of their organs? In a system of pure consequentialism, there are not many good answers to such challenging questions, though often inherited moral qualms, flowing from earlier moral systems, restrain the disturbing developments suggested by them.
In fact, criteria for determining death already have been altered in the United States so as to increase the supply of ‘harvestable’ organs. The traditional criteria for determining death included the cessation of cardiopulmonary activity. When a person stopped breathing and his heart stopped beating, the person was, or very soon would be, dead absent an intervention to restore cardiopulmonary activity. The cessation of cardiopulmonary function, however, also imperils the usefulness of organs. To maximize the organ supply, the new definition of death involves brainwave activity and is compatible with continued cardiopulmonary function. There was no good moral reason for the change except on consequentialist grounds. So what other changes might become thinkable on similar grounds?