1. Introduction
If only you knew all, Socrates, and realized that rhetoric includes practically all other faculties under her control. And, I will give you good proof of this. I have often, along with my brother and with other physicians, visited one of their patients who refused to drink his medicine or submit to the surgeon's knife or cautery, and when the doctor was unable to persuade them, I did so, by no other art but rhetoric. [1]
Undoubtedly, some medical ethicists will criticize Gorgias because he seems to have violated the autonomy of the patients he persuaded to undergo medical treatment, and because he was not a fiduciary of the patients on whose behalf he claims to have acted. After all, even in the fourth century B.C.B., Hippocrates's rules of medical ethics required practitioners to do good and to refrain from doing harm to people in their care. Moreover, in light of Gorgias's defense of rhetoric, it is not clear whether or not his actions resulted in good for patients who would have chosen to undergo medical treatment without his counsel, or harm to patients whose autonomy he violated by persuading them to undergo medical treatment against their wills. Of course, the latter was further complicated by the fact that Gorgias was not a fiduciary of the patients he counseled so he was not required to act in their best interest. For example, Gorgias might have been engaged in coercing patients to undergo medical treatment against their wills as a way of testing his rhetorical skills. Either way. there are both medical ethical and legal grounds on which one might criticize Gorgias.
Ethical dilemmas like these arise in the field of pediatric heart transplantation because decisions about whether or not infants will be organ donors are always made by their parents, guardians, or others who are presumed to have the infant's best interest in mind. In such cases, parents, guardians, and others act as fiduciaries of infants because infants cannot make their own decisions about organ donation. Moreover, when a potential organ donor is in the process of dying, or has been declared dead, time becomes a major factor because organs must be removed and transplanted within a window of opportunity. For example, in the case of a pediatric heart transplant, the heart must be transplanted within 6 hours after it has been removed from the infant's body; otherwise it will not be viable.
This short window of opportunity coupled with the problem of organ scarcity has given rise to some prima facie ethically questionable practices. [2-4] For example, in "Ethics of Persuasion: Evaluating the Ethical Limits on Attempting to Persuade Families to Donate the Organs of Deceased Family Members," Jennifer Chandler and Vanessa Gruben report that the "Organ Donation Breakthrough Collaborative methodology in the United States encourages a more aggressive pursuit of donation, including reproaching refusing families." [2] Similarly, in "The Newborn as Organ Donor," Christopher Tomlinson and Jonathan Hellmann cite research which suggests that the "desire for organ procurement has become excessive." [3] In light of this, in "Organs for Donation: Balancing Conflicting Ethical Obligations," Robert Troug warns that "the pendulum has swung too far in the direction of organ procurement at the expense of commitments that are fundamental to the patient-physician relationship." [4] He concludes that, "if uncorrected, this trend could substantively erode the public's trust in the transplantation enterprise." [4]
Other important ethical issues arise out of ongoing philosophical debates in the field of pediatric organ transplantation, including whether or not organs that are donated by pediatric patients ought to be reserved for pediatric recipients [5]; whether or not organ scarcity justifies "aggressive" or "excessive" organ procurement practices [2, 3]; and whether or not hospitals should provide follow-up care to parents who have donated an organ of a recently deceased child. Some of these issues arise from the fact that it is not possible for parents to know the wishes of their infant children. This uncertainty is often maximized by the stress of being asked to donate the organ of a dying child shortly after learning of the child's prognosis. [6] Undoubtedly, the combination of uncertainty and stress makes many parents vulnerable to those who engage in "aggressive" or "excessive" practices in the procurement process. [2, 3]
In what follows, I offer philosophical analyses of the problem of organ scarcity and the solutions that have been offered by medical ethicists against the backdrop of a .discussion about pediatric heart transplantation. The solution that I find most promising is the practice of "nudging" as defined by Chandler and Gruben and refined by Constantine D. Mavroudis, Tom Cook, Jeffrey P. Jacobs, and Constantine Mavroudis in "Ethical Considerations of Transparency, Informed Consent, and Nudging in a Patient with Paediatric Aortic Stenosis and Symptomatic Left Ventricular Endocardial Fibroelastosis." [7] According to Chandler and Gruben, "nudging" is the practice of encouraging families to donate the organs of a recently deceased loved one. [2] Although many scholars argue that "nudging" can be used to address the problem of organ scarcity ([8]; also see [9]), more needs to be done to protect parents who are thinking about donating an organ of a recently deceased child from agents who engage in "aggressive" or "excessive" organ procurement practices. [2, 3]
Towards this end, like Mavroudis et al. [7], I offer refinements to the practice of "nudging" for the purpose of protecting parents from experiencing psychological harm in the procurement process, and hospitals from being the subjects of lawsuits. 1 argue that the Department of Health and Human Services ought to establish uniform policies requiring hospital and organ procurement staff to log all conversations about organ donations; prohibiting the number of times organ procurement staff can solicit donations from parents of a recently deceased child; providing follow-up care to all parents who are asked to donate whether or not they actually do so; and establishing oversight and procedures for reprimanding agents who break the rules. I conclude that adherence to these policies will increase organ donation, remove many of the problems that exist currently in the procurement process, and increase good will among patients, families, hospitals, and organ procurement agencies.
2. A Separate Organ Market for Pediatric Patients
According to the Organ Procurement and Transplantation Network, as of May 2019, there were 59 infants who were in need of heart transplants but only 37 hearts have been donated by parents of deceased infants. [10] Of course, organ scarcity is not unique to the field of pediatric organ transplantation. To be sure, scarcity is a major problem in the fields of pediatric and adult organ transplantation. For example, as of May 2019, there were 2000 children and 113,000 adults on the national organ transplant waiting list. Moreover, in 2018, there were 36,000 organ transplants performed in the United States. [10] While this set a record for the number of transplants performed in a year in the United States, it was not nearly enough to satisfy the demand for organs. To put it in perspective, if the number of organ transplants that will be performed in 2019 is consistent with the number of organ transplants that were performed in 2018, then, even under record-setting conditions, there will be 77,000 people who will not get the organs they need this year. [10] Even worse, some of those on the organ transplant waiting list will die before compatible organs become available. In 2018, for example, more than 7300 Americans died while waiting for compatible organs. [11]
The problem of organ scarcity is equally acute in the field of pediatric heart transplantation because of additional considerations like size-matching. For example, infants and young children are often too small to receive heart transplants from older children and adults. For this reason, the heart of a pediatric organ donor must be measured to ensure that it is compatible in size with the body of the potential pediatric heart recipient before it can be transplanted; otherwise the organ will not function properly, or it may fail altogether. Of course, blood must be matched for compatibility also. After all, a person with Type A blood cannot receive a transfusion from a person with Type B blood. If this happens, the recipient might suffer an incompatibility response which could be fatal. For similar reasons, tissue must be tested for compatibility. This explains why hospital personnel go through extensive protocols before they perform blood transfusions, and organ transplants.
Notice, however, that there are no compatibility protocols to ensure that organs which are donated by pediatric patients go to pediatric recipients. This might be surprising to some, especially since "a large proportion of pediatric organs... are transplanted into adult recipients" [5] even though "children, especially newborns, have a higher waitlist mortality rate than other patient groups." [3] In fact, this has led some child advocacy groups to call for organ transplant programs for pediatric patients. [5] However, such a change would mark a major shift in practice because, currently, organs are allocated on the bases of medical criteria like size compatibility and urgency of medical need. Hence, an adult patient who has a more urgent medical need for a particular organ will be higher on the organ transplant waiting list than a pediatric patient who has a less urgent medical need for the organ. In such cases, the adult patient will receive greater priority than the pediatric patient when a compatible organ becomes available, even if the organ was donated by a pediatric patient.
Of course, the problem with reserving organs for one group based on a non-medical criterion like age is that we might find it difficult to refrain from reserving organs for other groups based on other non-medical criteria like economic class, gender, race, religion, or some other phenotypical trait or sociological characteristic. Even worse, phenotypical traits and sociological characteristics like age, economic class, gender, race, religion, and so on, are superfluous for making medical decisions about organ allocation. After all, the religious beliefs of parents cannot tell us whether or not their child's heart will be compatible in size with the body of a potential organ recipient. Thus, if medical professionals were to make decisions about allocating organs based solely on phenotypical traits or sociological characteristics, then, inevitably, some doctors will unwittingly transplant incompatible organs into the bodies of their patients. Undoubtedly, this would result in harm and thereby violate the Principle of Non-maleficence.
Moreover, given the U.S.'s history of discrimination and medical experimentation on various groups based on gender, mental capacity, race, and sexual orientation it would be imprudent for medical professionals to even include phenotypical traits and sociological characteristics in the decision-making process for allocating organs. For example, in Bad Blood, James Jones offers us a detailed account of unethical medical experiments that were performed on African-American males in Tuskegee, Alabama from 1932 until 1972. [12] The Tuskegee experiments were only stopped because an investigative reporter from the Associated Press, Jean Heller, revealed what was happening in the Washington Star on July 25th, 1972. [12] Not surprisingly, after Heller's article was published there was public outrage and a great deal of distrust of the medical community, particularly among African-Americans.
Even worse, the Tuskegee Syphilis Experiment was not an isolated incident. To be sure, in Medical Apartheid, Harriet Washington recounts the details of several other unethical experiments that were performed on African-Americans without their consent. [13] Similarly, in Medical Bondage, Deidre Owens explains how unethical gynecological experiments were performed on African-Americans women without their consent. [14] Thus, if doctors were to include phenotypical traits or sociological characteristics in the decision-making process for allocating organs. they would risk undermining the public's trust that medical professionals act in the best interest of all patients. For this reason, I conclude that medical professionals ought not to include phenotypical traits or sociological characteristics in the decision-making process for allocating organs.
3. An Opt-Out System of Organ Donation
After all, there are other ways to address the problem of organ scarcity. For example, in Nudge, Richard Thaler and Cass Sunstein argue that, since many people will act in accordance with whatever the "status quo bias is, the best way to increase organ donations is to switch the United States to an opt-out system of organ donation. [8] Of course, this would entail placing all Americans on the organ donor registry unless they express a desire to be omitted. Also, this would automatically switch the burden of acting affirmatively from those who wish to donate their organs to those who do not wish to donate their organs. For this reason, some scholars argue that opt-out systems are problematic because they give the state a license to harvest the organs of those who fail to register their desire not to donate. [15]
Moreover, for Thaler and Sunstein, opt-out systems are libertarian and paternalistic. In State, Anarchy, Utopia, Robert Nozick tells us that libertarians seek to minimize state intervention as a way of maximizing individual freedom. [16] By contrast. in "Paternalism." Gerald Dworkin tells us that paternalists seek to increase state intervention as a way of promoting the interests of individuals. [17] For these reasons, philosophers usually take libertarianism and paternalism to be incompatible, but Thaler and Sunstein believe that they can maintain both positions simultane. ously. Indeed, they argue that opt-out systems are libertarian because they preserve individual freedom by allowing people to opt-out if they choose, and paternalistic because they promote the interests of individuals by "nudging" them towards their desired goals. [8] For me, opt-out systems result in "institutional nudging" because the system provides the pressure that induces people to act in a particular way. Later, I will argue for a form of "nudging" that is interpersonal. "Interpersonal nudging" occurs when people provide the encouragement that induces others to act in a particular.
Thaler and Sunstein attempt to justify their position by highlighting survey results illustrating that 97% of those surveyed say that they support organ donation, but only 43% of those surveyed were registered organ donors. [8] They argue that this disparity highlights the fact that the default position in the United States is at odds with the desire of the majority of Americans. That is, the majority of Americans support organ donation but the default position in the U.S. is not to donate. Hence, they conclude that the proper course of action is to design a system that aligns the default position with the desire of most Americans. [8] For this reason, they support switching the United States to an opt-out system as a way of addressing the problem of organ scarcity.
At first glance, Thaler's and Sunstein's position seems justified, particularly in light of their discussions of the survey results and "status quo bias." However, on closer inspection, I find that Thaler's and Sunstein's arguments do not support their conclusion that the U.S. ought to switch to an opt-out system. After all, their discussions of the survey results and "status quo bias" cannot explain why so many Americans protest against opt-out legislative proposals. For example, Assemblyman Patrick Burke's 2019 legislative proposal to switch the state of New York to an opt-out system of organ donation gave rise to protest. [18] In fact, Assemblyman Burke withdrew his proposal because of the negative backlash it received. [18] This is not surprising because many opt-out legislative proposals attract negative attention. More importantly, most opt-out legislative proposals never make it out of committee. Those that do make it out often fail miserably on the floor in state legislatures. Indeed, opt-out systems of organ donation have been
considered in the United States before, but never beyond initial considerations. The Ethics Committee of the United Network for Organ Sharing (UNOS) developed a white paper on presumed consent in 1993 and repeated those findings in 2005. It noted there was no clarity whether a large proportion of the population was primed for this type of system. At least three states, Delaware, Colorado, and New York, have considered modifying their laws to presumed consent stances, but these efforts quickly fizzled out. [19]
Similarly, opt-out legislative proposals have failed in Pennsylvania in 2016, [20] Texas in 2017, [21] and Connecticut in 2017. [21] In light of this, it seems clear that, while the majority of Americans support organ donation, they do not support switching to an opt-out system of organ donation.
There is another problem with Thaler's and Sunstein's justification, namely, it fails to account for why some countries with opt-in systems have higher donation rates than others with opt-out systems. For example, the United States has a higher deceased organ donor rate than many countries with opt-out systems, including France, Finland, Italy, and Sweden. [22, 23] This is also true of other countries with opt-in systems. For example, the United Kingdom has a higher deceased organ donor rate than Finland and Sweden. [22, 23] Thaler and Sunstein attempted to explain this contravening evidence by pointing to the fact that the U.S. has a better medical system than many other countries. [8] Notice, however, that this explanation does not work in the cases of the U.S. and U.K., and France, Finland, Italy, and Sweden. After all, they all have similar technologically advanced economies, and therefore, it is likely that they have comparable medical systems. More importantly. if Thaler's and Sunstein's explanation is correct, then they have been arguing for the wrong conclusion. Instead of arguing that the U.S. should switch to an opt-out system, they should be arguing that nations can increase their organ donor rates by improving the quality of their medical systems.
Even worse, it seems that Thaler's and Sunstein's attempt to explain organ donation rates by the quality of a country's medical system also fails. After all, Croatia has a higher deceased organ donor rate than the United States. [22, 23] Moreover, given that the U.S. has a more technologically advanced economy than Croatia it is likely that the U.S has a more technologically advanced medical system than Croatia. This is true of other countries also. For example, Latvia has a higher deceased donor rate than Germany. [22, 23] However, Germany has a more technologically advanced economy than Latvia. In which case, it is like that Germany has a more technologically advanced medical system than Latvia. In light of this, it seems that Thaler's and Sunstein's attempt to account for the contravening evidence also fails. In which case, their conclusion that switching to an opt-out system would increase organ donation rates is not supported by the empirical evidence. For this reason, I concluded that, rather than switching to an opt-out system, we should focus on other ways to increase organ donation rates, like "interpersonal nudging."
Finally, in the Second Treatise of Civil Government, John Locke argues us that people have a natural right to property in their bodies. [24] To be more exact, Locke means that autonomous people have the natural right to determine what happens to their bodies. For example, he tells us that each of us "have the freedom to order our actions, and dispose of our possessions and persons as we see fit without asking for permission from anyone," and that the "freedom then of man, and liberty of acting according to his own will is grounded on his having reason." [24] More importantly, medical institutions in the United States have adopted a similar position because respect for patient autonomy and patient consent are obligatory in the practice of medicine. However, notice that when someone dies, his/her real estate, money, food, and other property go to his/her spouse, children, or next of kin, even in cases where he/she did not leave a will. Thaler and Sunstein recognize this in their discussion of inheritance. [8] Thus, it is perfectly reasonable to demand a justification for why Thaler and Sunstein treat bodily property, i.e. organs, differently from how they treat other kinds of property, i.e. homes. The answer cannot be that a deceased person's heart, lungs, kidneys, and other organs will save lives because a deceased person's real estate, money, and food would save the lives of homeless people if they were given to them upon one's death.
At this point, it seems that Thaler and Sunstein only have three possible ways to respond: first, they might argue that bodily property is fundamentally different from other kinds of property such that it should be turned over to the state upon one's death: secondly, they might argue that all property should be turned over to the state upon one's death; or, thirdly, they might "bite the bullet" and simply accept that their position is inconsistent. The first option does not seem viable because the fundamental difference between bodily property and other kinds of property is material. That is, bodily property is organic while other kinds of property are inorganic. More importantly, however, this fact is irrelevant for determining whether or not property, bodily or otherwise, should be turned over to the state upon one's death. The second option makes Thaler's and Sunstein's position consistent, but it does not seem practicable. After all, very few Americans would accept the conclusion that their property should be turned over to the state when they die, whether or not there is an opt-out option. In fact, even Thaler and Sunstein didn't draw this conclusion when they discussed inheritance. [8] For this reason, it would be disingenuous to attribute it to them here. This leaves the third option, which is itself a logical reason for rejecting their position. Thus, for the reasons articulated above, I find myself unable to accept Thaler's and Sunstein's conclusion that the U.S. ought to switch to an opt-out system of organ donation.
4. A Commercial Market for Human Organs
Of course, not all medical ethicists believe that the U.S. ought to switch to an opt-out system of organ donation in order to address the problem of organ scarcity. In fact, in Organs for Sale by Owner: Human Organs, Transplantation, and the Market, Mark Cherry argues that the best way to address the problem of organ scarcity is to develop a commercial market for buying and selling human organs. [25] According to Cherry, a commercial organ market can be regulated to ensure the quality of the organs and the physical safety of the buyers and sellers. Moreover, he argues that since people are often motivated by money there will be no shortage of people willing to participate in a commercial organ market, provided, of course, that the financial and other incentives are high enough. He concludes that a commercial market for human organs will greatly reduce or altogether eliminate the large number of people on the organ donation waiting list and thereby save thousands of lives, many of them infants and children.
Even more, in recent years, bioethicists have been more vocal in their advocacy for a commercial organ market. To be sure, Janet Radcliff-Richards, in "The Case for Allowing Kidney Sales;" [26] Benjamin Hippen, in "A Defense of a Regulated Market in Kidneys from Living Donors;" [27] and, L.D. de Castro, in "Commodification and Exploitation: Arguments in Favor of Compensated Organ Donation," [28] have argued for some version of a commercial organ market. In light of this, it seems that we ought to consider the possibility of having a commercial market for organs. After all, there are many ways to design such a market. For example, the seller might be compensated during his/her lifetime for access to his/ her organs upon his/her death. Alternatively, the seller's family might be compensated for access to his/her organs upon his/her death. Or, the exchange of organs and money might take place while the seller is still alive - at least, this is possible when the exchange concerns organs that are not necessary for life.
This position will not seem foreign to many because the U.S. government already allows people to buy and sell their body parts on the commercial market. Currently, people buy and sell human blood, breast-milk, eggs, hair, plasma, sperm, and stem cells on American markets. So, it is perfectly reasonable for Cherry and others to ask: Why not allow people to buy and sell corneas, kidneys, livers, and lungs on American markets also? The answer seems to be that a commercial market for human organs will be coercive to poor Americans. After all, no matter what the incentives are, wealthy Americans are not likely to sell their organs because they have enough money, power, and influence to enjoy all of the advantages of living in high society without undergoing a major surgery to remove a working organ. Similarly, middle-class Americans are not likely to sell their organs because they have access to institutions which allow them to enjoy most of the advantages of living in America without undergoing a major surgery to remove a working organ.
By contrast, the poor have very little money, power, or influence, and, even after accessing social services programs, they are still left at the bottom of American society, often teetering between homelessness, illnesses, and joblessness. As a result, they eke out a meager living in the housing developments of large cities, and the rural communities of dilapidated small towns, hoping for a better life. In which case, the promise of thousands of dollars will be enough to coerce many of them into participating in the commercial organ market. In fact, in the Concept of Law, H.L.A. Hart tells us that coercion occurs when one feels psychological pressure to act in a particular way in order to avoid suffering serious harm. [29] Given that the poor teeter constantly between homelessness, joblessness, and illnesses, one can see how they will feel psychological pressure to sell their organs in order to avoid the ills of homelessness and illnesses. More importantly, a commercial organ market will depend on such coercion, especially if it is to solve the problem of organ scarcity; otherwise there will not be enough people participating in it. Hence, given the problem of coercion of the poor, I find that a commercial market for buying and selling human organs on the U.S. market is unjustified.
Lastly, notice that a commercial market for buying and selling vital organs is much different from the aforementioned market for buying and selling blood, breast-milk, eggs, hair, plasma, sperm, and stem cells. After all, the current market does not depend on coercing the poor. In fact, the majority of people who participate in the current market are middle-class. For example, for-profit egg donation agencies often advertise in the newspapers of elite colleges like U.C.L.A. [30] Moreover, the median household income of a student at U.C.L.A. is $104,000 per year. [31] Hence, by default, middle-class women are much more likely to be egg donors than poor women. For profit sperm and hair agencies have similar recruiting practices. Either way, most of the body parts that are sold on the current market are replenished by the body naturally, and therefore, the seller's capacity to function is not reduced. For these reasons, I find that it is morally permissible to allow people to sell non-vital human body parts like blood, breast-milk, eggs, hair, plasma, etc.. on the U.S. market.
5. "Interpersonal Nudging" as the Solution to the Problem of Organ Scarcity
A better alternative is to engage in "interpersonal nudging" within an opt-in system. This approach would allow us to increase the supply of organs and avoid the problems I've highlighted with Thaler's and Sunstein's opt-out proposal. According to Chandler and Gruben, "nudging" is the act of "using persuasive techniques to encourage families to consent to donate the organs of a deceased love one." [2] For me, the "nudging" in question is interpersonal if the encouragement that induces a person to act comes from another person. More importantly, however, those engaged in "interpersonal nudging" must be careful to avoid engaging in behaviors that would undermine the public's trust or violate patient autonomy. For, Chandler's and Gruben's phrase "using persuasive techniques to encourage families to consent to donate might be interpreted to include a broad range of behaviors. [2-4]
To be sure, Chandler and Gruben tell us that some organ procurement agents engage in aggressive persuasive techniques like "reproaching refusing families" or "evoking feelings of guilt" to influence parents to donate. [2] This is confirmed by a "critical care physician in Chicago" who told a reporter for the Washington Post that "he has seen these guys come in and almost browbeat families into submission to get them to donate organs." [4] Similarly, an intensive care nurse at a hospital in Madison. Wisconsin reported that "the people I work with sometimes feel they are too pushy." [32] Michael Grodin reported having the impression that they are "like vultures, flying around the hospitals hovering over beds waiting for them to die so they can grab the organs." [32] David Crippen warns that "the demand for organs is very intense, and the organ-procurement organizations have become much more aggressive about supplying it." [32] Like Robert Troug, he concludes that, if we are not careful, "some of the changes in the logistics of organ procurement could compromise public trust." [32] I would add that procurement agents who "reproach," "guilt," "pressure," "browbeat," or "push" parents into donating the organs of their recently deceased child violate patient autonomy, and therefore, act unethically.
It's worth noting that not all procurement agents act in these ways. Probably, only a small minority of agents do so. Nevertheless, I can understand how some might feel encouraged to engage in such behaviors, given the fact that some organ procurement agencies
are evaluated based on their conversion rates (percentage of potential donors who become actual donors), they are paid on the bases of the number of donors they secure, and their employees are presumably hired, fired, and promoted on the basis of how well they promote these goals. [33]
After all, as Michael A. De Vita, reminds us: "If you promote organ donation too much, people lose sight that it's a dying patient there." [32] Consequently, in light of the evidence above, I believe that it is imperative for the Department of Health and Human Services to establish clear standards for governing the behavior of hospital staff and private agents involved in the organ procurement process. Mavroudis and associates move us in the direction of this goal in "Ethical considerations of transparency, informed consent, and nudging in a patient with paediatric aortic stenosis and symptomatic left ventricular endocardial fibroelastosis." [7]
According to Mavroudis and associates, there are four persuasive techniques that allow agents to engage in the practice of "nudging" without violating the autonomy of the parents: selective emphasis, beneficent persuasion, nudging and informed consent, and shared decision-making. [7] Selective emphasis allows a doctor to offer explanations to parents that are proportional to the different levels of risks involved in a procedure. For example, a doctor might emphasize the importance of the salient features involved in identifying a compatible organ donor for a potential pediatric heart transplant recipient while de-emphasizing a rare negative outcome that might occur. Of course, the point of selective emphasis is not deception or concealment, but rather, "to give proper weight to the various factors at hand." [7]
Beneficent persuasion allows a doctor to use empathy, respect, and negotiation to improve the long-term health of his/her patients. For example, a doctor might use beneficent persuasion to encourage parents to think about the opportunities their child might lose if they fail to consent to a much-needed heart transplant. [7] Of course, the doctor is not attempting to guilt the parents into consenting to the procedure, but rather, he/she is simply directing them to think about the long-term effects that their decision will have on the health of their child. More importantly, nudging and informed consent allows a doctor to "bridge the gap between his/her duty to respect patient autonomy and beneficence." [7] In other words, a doctor might engage in "interpersonal nudging" as a way of inducing parents to do what they already know is in the best interest of their child, and are leaning towards doing anyway. Mavroudis and associates explain that "nudging" must be "transparent and never misleading, easy to opt-out of, and done with the purpose of improving the welfare" of the child. [7] Lastly, shared decision-making allows the parents and the doctor to weigh different treatment options for the child. They achieve this when there are shared information exchanges, deliberation, and negotiations between the doctor and the parents.
The techniques Mavroudis and associates offer are important standards for guiding the behavior of medical professionals when they are engaged in advising parents about various treatment options for their child. Moreover, the techniques of beneficent persuasion, interpersonal nudging, and informed consent can be used to increase organ donations without violating the autonomy of the parents to choose. However, when the conversation turns to organ donation, additional standards are needed to protect parents from experiencing psychological harm in the organ procurement pro-cess, and hospitals from being the subject of lawsuits. After all, some parents have reported experiencing trauma as a result of having to deal with aggressive organ procurement agents while their child was dying in a hospital. Moreover, some parents have launched successful lawsuits on the grounds of emotional harm. [34]
More importantly, however, to prevent other families from experiencing emotional or psychological harm, the Department of Health and Human Services ought to establish uniform policies requiring hospital and organ procurement staff to log all conversations about organ donations. Every log entry should include the time and date of the request to donate, the names and titles of the hospital and organ procurement staff who were engaged in the conversation, and the conditions under which the conversations took place. In this way, it will be easy to keep track of the conversations about donating and identify how often the parents were approached. In addition, parents should be given a sufficient amount of time and space to make a decision and to report back to the hospital. Of course, the amount of time needed will vary, but this can be negotiated at the time when the conversation about donating occurs. If the parents decide not to donate, the hospital staff and organ procurement agent should be required to accept their decision without attempting to persuade them to do otherwise.
Even more, the Department of Health and Human Services should require hospitals to provide follow-up care to all parents who are asked to donate the organs of their recently deceased child, whether or not they actually donate any organs. The purpose of this is to give the parents an opportunity to share their thoughts about the organ procurement process. This also gives the hospital staff an opportunity to make changes to the process if any are needed, and it allows the hospital staff to do due diligence by offering follow-up care to parents. Finally, there must be oversight to ensure that the policies are followed and that organ procurement agents who violate the policies are reprimanded. These changes coupled with those offered by Mavroudis et al are justified because they protect the autonomy of parents insofar as they afford them time and space to make an autonomous decision, give them the possibility of opting out, and offer them follow-up care. Additionally, they allow medical staff to do due diligence by giving them guidelines for engaging in "interpersonal nudging" without violating the autonomy of patients while providing follow-up care to those who might need it.
6. Conclusion
In this chapter, I have offered philosophical analyses of the problem of organ scarcity and the solutions that have been offered by medical ethicists against the back. drop of a discussion of heart transplants in pediatric patients. I have argued that "interpersonal nudging" in an opt-in system, as opposed to "institutional nudging." offers us the best potential for addressing the problem of organ scarcity while avoiding the ethical problems associated with other solutions. While I have agreed with Chandler's and Gruben's definition of nudging, and the standards for engaging in justified nudging offered by Mavrouds and associates, I have argued that more needs to be done to protect parents who are thinking about donating an organ of a recently deceased child from aggressive organ procurement agents and hospitals from lawsuits. Towards this end, I have argued that the Department of Health and Human Services ought to establish uniform policies requiring hospitals and organ procurement staff to log all conversations about organ donations; limit the number of times staff can ask parents to donate; provide follow-up care for all parents who are asked to donate whether or not they do so; establish oversight, and reprimand agents who violate the policies repeatedly. I have concluded that adherence to these policies will increase organ donation, remove problems with over-zealous organ procurement agents, and increase good will among all concerned.
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