The ethics of organ transplantation

Libertarian paternalism allows individuals' well-being to be helped without impacting on freedom of

Most political decisions involve trade-offs between different interest groups. Changes in the tax system, for example, typically leave some better-off and others worse-off. Even when trade-offs between different individuals aren’t at stake, political decisions will be a balancing act between different values.

For example, airport security restrictions limit our freedom, in at least the hope of increasing our physical security; those who benefit are the same as those who bear the costs, but everyone has to take a loss (of freedom) in order to create a gain in security.

What is remarkable about the government’s new ‘presumed consent’ proposals on organ transplantation is that they involves no such trade-offs. No-one will be made worse-off in any way, although others will benefit, and no important value is sacrificed in pursuit of some other goal. It’s a rare case of the sort of ‘win-win’ solution that governments may occasionally hope to find to difficult political problems. We should support these kinds of ‘win-win’ policies wherever they crop up, and governments should do more to identify them in other areas.

At the moment, organ transplantation in the UK is based on an ‘opt-in’ system. Organs are harvested for use in transplants only when the dead individual was a carrier of a Donor Card, or where the individual’s family have volunteered his or her organs for use.

This contrasts with the system in countries like Spain, where there is ‘presumed consent’ for everyone to give their organs for use in transplants. Individuals remain free to opt-out of these arrangements if they so wish, and families retain the right to refuse permission for their loved-one’s organs to be harvested.

Put simply, in answer to the question of whether a dying person’s organs will be available for transplant, the default answer in Spain is ‘Yes’, whereas the default answer in the UK is ‘No’.

Unsurprisingly, this difference in the ‘default position’ has a large influence on the number of transplants that are actually carried out each year in the two countries. In Spain the figure is 33.8 per million of population, whereas in the UK it is just 12.9 per million.

Accordingly, thousands of people in the UK are waiting for organ transplants, and many will die before the end of their wait. If enough organs for transplant could be found, about 1,000 extra lives could be saved every year.

The government’s Chief Medical Officer Sir Liam Donaldson backs the move to the Spanish model of ‘presumed consent’, as does the government’s task force on organ donation. It looks like we can expect the Brown government to bring in a thoroughly sensible change of policy following these recommendations, thereby saving hundreds of lives every year.

As well as the move towards ‘presumed consent’, the UK will also be adopting something closer to the Spanish model of having highly-trained ‘organ procurement officers’, who will deal with relatives at the fraught but crucial time just before and just after death. (To see such a ‘procurement officer’ at work, and to see how deep this culture of organ donation now runs in Spanish society, it is instructive to watch Pedro Almodovar’s wonderful film All About My Mother, in which the central character, Manuela, works as a procurement officer.)

The move to the Spanish model of ‘presumed consent’ is a win-win situation because it makes many people better off (i.e. those who will receive organs), whilst leaving no-one worse off. Indeed, by relieving some of the pressure on the difficult decision of whether to donate, it arguably makes things somewhat easier for family members. So, everyone benefits. It also involves no trade-offs in terms of values because it increases the life expectancy and quality-of-life of organ recipients without restricting the freedom of choice of anyone else. Donors and their families still have the entitlement to withhold organs, for whatever reason, and so they face no limitation on their freedom. It is just that ‘default position’ against which they make their choice has been changed.

The Spanish model with it’s ‘soft’ opt-out thereby contrasts with ‘hard’ opt-out in operation in Austria, where family members are not consulted. Perhaps the Austrian policy is the best option all-things-considered, but, by curtailing the freedom of choice of family members, it does not have the ‘win-win’ structure of the Spanish model.

These sorts of win-win policies can crop up all over the place. For example, some American corporations found that, where they offered their employees a huge range of investment products for their retirement savings, the choice was simply too bewildering, and employees instead chose to save nothing. Too much choice, after all, is useless when we do not have the right kind of information at our fingertips. What such companies have instead done is to sign-up their employees for a sensible and prudent investment plan as the default option, whilst still leaving them the full entitlement to ‘opt-out’ of that plan, or to transfer to an alternative.

The American legal theorist Cass Sunstein has called these sorts of policies forms of ‘libertarian paternalism’ – ‘libertarian’ because no-one’s freedom of choice is affected, but nevertheless a form of ‘paternalism’ because the well-being of individuals is helped directly by the policy. These sorts of ‘libertarian paternalist’ policies are the ‘one-person’ version of the many-person ‘win-win’ policy involved in the Spanish model of organ donation. Individuals gain in terms of their future well-being, but lose nothing in terms of freedom, because they can still choose to do whatever they were entitled to do before.

The lessons of the ‘Spanish model’ are twofold. Firstly, one can do a lot in health policy and social policy just by manipulating what the default option might be, without interfering with anyone’s freedom of choice. Secondly, although politics is usually about making tough choices, the existence of these kinds of ‘win-win’ policies means that sometimes doing the right thing in politics can be surprisingly easy.

Martin O’Neill is a political philosopher, based at the Centre for Political Theory in the Department of Politics at the University of Manchester. He has previously taught at Cambridge and Harvard, and is writing a book on Corporations and Social Justice.
Jeremy Corbyn. Photo: Getty
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Lexit: the EU is a neoliberal project, so let's do something different when we leave it

Brexit affords the British left a historic opportunity for a decisive break with EU market liberalism.

The Brexit vote to leave the European Union has many parents, but "Lexit" – the argument for exiting the EU from the left – remains an orphan. A third of Labour voters backed Leave, but they did so without any significant leadership from the Labour Party. Left-of-centre votes proved decisive in determining the outcome of a referendum that was otherwise framed, shaped, and presented almost exclusively by the right. A proper left discussion of the issues has been, if not entirely absent, then decidedly marginal – part of a more general malaise when it comes to developing left alternatives that has begun to be corrected only recently, under Jeremy Corbyn and John McDonnell.

Ceding Brexit to the right was very nearly the most serious strategic mistake by the British left since the ‘70s. Under successive leaders Labour became so incorporated into the ideology of Europeanism as to preclude any clear-eyed critical analysis of the actually existing EU as a regulatory and trade regime pursuing deep economic integration. The same political journey that carried Labour into its technocratic embrace of the EU also resulted in the abandonment of any form of distinctive economics separate from the orthodoxies of market liberalism.

It’s been astounding to witness so many left-wingers, in meltdown over Brexit, resort to parroting liberal economics. Thus we hear that factor mobility isn’t about labour arbitrage, that public services aren’t under pressure, that we must prioritise foreign direct investment and trade. It’s little wonder Labour became so detached from its base. Such claims do not match the lived experience of ordinary people in regions of the country devastated by deindustrialisation and disinvestment.

Nor should concerns about wage stagnation and bargaining power be met with finger-wagging accusations of racism, as if the manner in which capitalism pits workers against each other hasn’t long been understood. Instead, we should be offering real solutions – including a willingness to rethink capital mobility and trade. This places us in direct conflict with the constitutionalised neoliberalism of the EU.

Only the political savvy of the leadership has enabled Labour to recover from its disastrous positioning post-referendum. Incredibly, what seemed an unbeatable electoral bloc around Theresa May has been deftly prized apart in the course of an extraordinary General Election campaign. To consolidate the political project they have initiated, Corbyn and McDonnell must now follow through with a truly radical economic programme. The place to look for inspiration is precisely the range of instruments and policy options discouraged or outright forbidden by the EU.

A neoliberal project

The fact that right-wing arguments for Leave predominated during the referendum says far more about today’s left than it does about the European Union. There has been a great deal of myth-making concerning the latter –much of it funded, directly or indirectly, by the EU itself.

From its inception, the EU has been a top-down project driven by political and administrative elites, "a protected sphere", in the judgment of the late Peter Mair, "in which policy-making can evade the constraints imposed by representative democracy". To complain about the EU’s "democratic deficit" is to have misunderstood its purpose. The main thrust of European economic policy has been to extend and deepen the market through liberalisation, privatisation, and flexiblisation, subordinating employment and social protection to goals of low inflation, debt reduction, and increased competitiveness.

Prospects for Keynesian reflationary policies, or even for pan-European economic planning – never great – soon gave way to more Hayekian conceptions. Hayek’s original insight, in The Economic Conditions of Interstate Federalism, was that free movement of capital, goods, and labour – a "single market" – among a federation of nations would severely and necessarily restrict the economic policy space available to individual members. Pro-European socialists, whose aim had been to acquire new supranational options for the regulation of capital, found themselves surrendering the tools they already possessed at home. The national road to socialism, or even to social democracy, was closed.

The direction of travel has been singular and unrelenting. To take one example, workers’ rights – a supposed EU strength – are steadily being eroded, as can be seen in landmark judgments by the European Court of Justice (ECJ) in the Viking and Laval cases, among others. In both instances, workers attempting to strike in protest at plans to replace workers from one EU country with lower-wage workers from another, were told their right to strike could not infringe upon the "four freedoms" – free movement of capital, labour, goods, and services – established by the treaties.

More broadly, on trade, financial regulation, state aid, government purchasing, public service delivery, and more, any attempt to create a different kind of economy from inside the EU has largely been forestalled by competition policy or single market regulation.

A new political economy

Given that the UK will soon be escaping the EU, what opportunities might this afford? Three policy directions immediately stand out: public ownership, industrial strategy, and procurement. In each case, EU regulation previously stood in the way of promising left strategies. In each case, the political and economic returns from bold departures from neoliberal orthodoxy after Brexit could be substantial.

While not banned outright by EU law, public ownership is severely discouraged and disadvantaged by it. ECJ interpretation of Article 106 of the Treaty on the Functioning of the European Union (TFEU) has steadily eroded public ownership options. "The ECJ", argues law professor Danny Nicol, "appears to have constructed a one-way street in favour of private-sector provision: nationalised services are prima facie suspect and must be analysed for their necessity". Sure enough, the EU has been a significant driver of privatisation, functioning like a ratchet. It’s much easier for a member state to pursue the liberalisation of sectors than to secure their (re)nationalisation. Article 59 (TFEU) specifically allows the European Council and Parliament to liberalise services. Since the ‘80s, there have been single market programmes in energy, transport, postal services, telecommunications, education, and health.

Britain has long been an extreme outlier on privatisation, responsible for 40 per cent of the total assets privatised across the OECD between 1980 and 1996. Today, however, increasing inequality, poverty, environmental degradation and the general sense of an impoverished public sphere are leading to growing calls for renewed public ownership (albeit in new, more democratic forms). Soon to be free of EU constraints, it’s time to explore an expanded and fundamentally reimagined UK public sector.

Next, Britain’s industrial production has been virtually flat since the late 1990s, with a yawning trade deficit in industrial goods. Any serious industrial strategy to address the structural weaknesses of UK manufacturing will rely on "state aid" – the nurturing of a next generation of companies through grants, interest and tax relief, guarantees, government holdings, and the provision of goods and services on a preferential basis.

Article 107 TFEU allows for state aid only if it is compatible with the internal market and does not distort competition, laying out the specific circumstances in which it could be lawful. Whether or not state aid meets these criteria is at the sole discretion of the Commission – and courts in member states are obligated to enforce the commission’s decisions. The Commission has adopted an approach that considers, among other things, the existence of market failure, the effectiveness of other options, and the impact on the market and competition, thereby allowing state aid only in exceptional circumstances.

For many parts of the UK, the challenges of industrial decline remain starkly present – entire communities are thrown on the scrap heap, with all the associated capital and carbon costs and wasted lives. It’s high time the left returned to the possibilities inherent in a proactive industrial strategy. A true community-sustaining industrial strategy would consist of the deliberate direction of capital to sectors, localities, and regions, so as to balance out market trends and prevent communities from falling into decay, while also ensuring the investment in research and development necessary to maintain a highly productive economy. Policy, in this vision, would function to re-deploy infrastructure, production facilities, and workers left unemployed because of a shutdown or increased automation.

In some cases, this might mean assistance to workers or localities to buy up facilities and keep them running under worker or community ownership. In other cases it might involve re-training workers for new skills and re-fitting facilities. A regional approach might help launch new enterprises that would eventually be spun off as worker or local community-owned firms, supporting the development of strong and vibrant network economies, perhaps on the basis of a Green New Deal. All of this will be possible post-Brexit, under a Corbyn government.

Lastly, there is procurement. Under EU law, explicitly linking public procurement to local entities or social needs is difficult. The ECJ has ruled that, even if there is no specific legislation, procurement activity must "comply with the fundamental rules of the Treaty, in particular the principle of non-discrimination on grounds of nationality". This means that all procurement contracts must be open to all bidders across the EU, and public authorities must advertise contracts widely in other EU countries. In 2004, the European Parliament and Council issued two directives establishing the criteria governing such contracts: "lowest price only" and "most economically advantageous tender".

Unleashed from EU constraints, there are major opportunities for targeting large-scale public procurement to rebuild and transform communities, cities, and regions. The vision behind the celebrated Preston Model of community wealth building – inspired by the work of our own organisation, The Democracy Collaborative, in Cleveland, Ohio – leverages public procurement and the stabilising power of place-based anchor institutions (governments, hospitals, universities) to support rooted, participatory, democratic local economies built around multipliers. In this way, public funds can be made to do "double duty"; anchoring jobs and building community wealth, reversing long-term economic decline. This suggests the viability of a very different economic approach and potential for a winning political coalition, building support for a new socialist economics from the ground up.

With the prospect of a Corbyn government now tantalisingly close, it’s imperative that Labour reconciles its policy objectives in the Brexit negotiations with its plans for a radical economic transformation and redistribution of power and wealth. Only by pursuing strategies capable of re-establishing broad control over the national economy can Labour hope to manage the coming period of pain and dislocation following Brexit. Based on new institutions and approaches and the centrality of ownership and control, democracy, and participation, we should be busy assembling the tools and strategies that will allow departure from the EU to open up new political-economic horizons in Britain and bring about the profound transformation the country so desperately wants and needs.

Joe Guinan is executive director of the Next System Project at The Democracy Collaborative. Thomas M. Hanna is research director at The Democracy Collaborative.

This is an extract from a longer essay which appears in the inaugural edition of the IPPR Progressive Review.