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.
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An English hero for the ages: Ian Botham at 60

Botham blends his sportsmanship and deep-seated passion for cricket with a lust for life.

Begging W H Auden’s pardon, it is possible both to honour and to value the vertical man, and in the case of Ian Botham, who turned 60 on 24 November, it is our bounden duty. No sportsman has given Britons so much to enjoy in the past half-century and no sportsman is loved more. Two decades after he retired from first-class cricket, his reputation as one of life’s champions remains unassailable.

No mere cricketer is he, either. Botham is a philanthropist, having raised more than £12m for various charities, notably Leukaemia and Lymphoma Research. In December, 30 years after his first walk from John o’Groats to Land’s End, he will set off again, in South Africa, where England are on tour. And he really does walk, too, not amble. As somebody who accompanied him on one of his dozen walks said: “You can’t keep up with him. The man is a phenomenon.”

Of all postwar sportsmen, only Bobby Charlton and, at a pinch, Henry Cooper come close to matching Botham’s enduring popularity. But Charlton, a shy man who was scarred by the Munich plane crash of 1958 (and may never have recovered from its emotional effects), has never comfortably occupied a public stage; and Cooper, being a boxer, had a solitary role. Botham, by contrast, spoke for England. Whenever he picked up his bat, or had a ball in his hand, he left spectators in no doubt.

Others have also spoken for England. Bobby Moore and Martin Johnson, captains respectively of England’s World Cup-winning football and rugby teams, were great players but did not reach out to people as naturally as Botham. Nick Faldo, Lester Piggott, Sebastian Coe and, to bring us up to date, Lewis Hamilton have beaten the best in the world, but they lacked those qualities that Botham displayed so freely. That is not to mark them down. They were, and are, champions. But Botham was born under a different star.

It was John Arlott, the great cricket commentator, who first spotted his uniqueness. Covering a match at Taunton in 1974, he asked the young colt to carry his bags up the rickety staircase to the press box, where Arlott, wearing his oenophile’s hat, pulled out a bottle of red wine and invited Botham to drink. Forty years later Botham is a discriminating wine drinker – and maker. Along with his friend and fellow England great Bob Willis, and their Australian wine­making pal Geoff Merrill, he has put his name to a notable Shiraz, “BMW”.

Arlott, with his nose for talent and good company, saw something in the young Botham that Brian Close, his captain at Somerset, was beginning to bring out. Later, Mike Brearley, as England captain, drew out something even more remarkable. As Rodgers and Hammerstein wrote, you’ve got to be carefully taught. And Botham, a fine team man as well as a supreme individual performer, has never withheld praise from those who enabled him to find his voice.

If sport reveals character, then cricket is the game that reveals it most clearly. In no other sport is the individual performance rooted so firmly in a team context. Every over brings a contest of skill and intelligence between batsman and bowler but only a team can win the match. “A cricketer,” as Arlott said, “is showing you something of himself all the time.”

Cricket also reveals national character more than any other sport. Football may be the most popular game in the world but cricket, and cricketers, tell us far more about England and Englishness. It is instructive, in this regard, to hear what Philippe Auclair, a French journalist and author long resident in London, has to say about Botham: “He is essentially an 18th-century Englishman.” In one! It’s not difficult to sense a kinship with Tom Jones, Fielding’s embodiment of 18th-century life, who began his journey, as readers may recall, in Somerset.

A country boy who played for Worcestershire after leaving Somerset, and who lives by choice in North Yorkshire, Botham is an old-fashioned Englishman. Although nobody has yet found him listening to the parson’s sermon, he is conservative with a small and upper-case C, a robust monarchist, handy with rod and gun, and happiest with a beaker in front of him. He represents (though he would never claim to be a representative) all those people who understand instinctively what England means, not in a narrow way, but through something that is in the blood.

Above all, he will be remembered for ever as the hero of 1981. Even now it takes some believing that Botham bowled and batted with such striking success that the Australians, who were one up after two Tests, were crushed. Some of us who were actually at Headingley for the famous third Test – thousands who claim to have been there were not – recall the odds of 500-1 on an England victory going up on the electronic scoreboard that Saturday evening.

Botham made 149 not out as England, following on, beat the Aussies by 18 runs. For three hours the country seemed to stop. In the next Test, at Edgbaston, Botham took five wickets for one run as Australia fell under his spell. Then, at Old Trafford, on a dank Saturday afternoon, he played the most memorable innings of his life and one of the greatest innings ever played by an Englishman: 118 magnificent, joyful runs. Joy: that’s the word. Botham brought joy into people’s lives.

Yet it was the final Test at the Oval, which ended in a draw, that brought from him a performance no less remarkable than those from before. He bowled 89 overs in that match, flat out, continuing to run in when others withdrew with injury. That was the team man coming to the fore. Little wonder his comrades thought the world of him.

Modest, loyal, respectful to opponents, grateful to all who have lent him a hand, and supported throughout a turbulent life by Kath, his rock of a wife, and their three children, this is a cricketing hero to rank with W G Grace, Jack Hobbs, Wally Hammond and Fred Trueman. A feature in the lives of all who saw him, and a very English hero. 

This article first appeared in the 26 November 2015 issue of the New Statesman, Terror vs the State