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Dignity and the Ownership and Use of Body Parts

Published online by Cambridge University Press:  17 July 2014

CHARLES FOSTER
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Abstract:

Property-based models of the ownership of body parts are common. They are inadequate. They fail to deal satisfactorily with many important problems, and even when they do work, they rely on ideas that have to be derived from deeper, usually unacknowledged principles. This article proposes that the parent principle is always human dignity, and that one will get more satisfactory answers if one interrogates the older, wiser parent instead of the younger, callow offspring. But human dignity has a credibility problem. It is often seen as hopelessly amorphous or incurably theological. These accusations are often just. But a more thorough exegesis exculpates dignity and gives it its proper place at the fountainhead of bioethics. Dignity is objective human thriving. Thriving considerations can and should be applied to dead people as well as live ones. To use dignity properly, the unit of bioethical analysis needs to be the whole transaction rather than (for instance) the doctor-patient relationship. The dignity interests of all the stakeholders are assessed in a sort of utilitarianism. Its use in relation to body part ownership is demonstrated. Article 8(1) of the European Convention of Human Rights endorses and mandates this approach.

Keywords

dignitybody partspropertyArticle 8Bayesianutilitarianismresources
Type
Special Section: Open Forum
Information
Cambridge Quarterly of Healthcare Ethics , Volume 23 , Issue 4 , October 2014 , pp. 417 - 430
Copyright
Copyright © Cambridge University Press 2014 

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References

Notes

1. Foster C. Dignity and the use of body parts. Journal of Medical Ethics 2012 Aug 14. doi:10.1136/medethics-2012-100763.

2. Bagaric, M, Allan, J. The vacuous concept of dignity. Journal of Human Rights 2006;5:257–69, at 269.Google Scholar

3. E.g., Macklin R. Dignity is a useless concept. British Medical Journal 2003;327:1419; Beyleveld D, Brownsword R. Human Dignity in Bioethics and Biolaw. Oxford: Oxford University Press; 2004; Nussbaum M. Human dignity and political entitlements. In: Pellegrino ED, Schulman A, Merrill TW, eds. Human Dignity and Bioethics. Notre Dame, IN: University of Notre Dame Press; 2009:351–80, at 372.

4. E.g., Schaub D. Commentary on Meilaender and Lawler. In: Pellegrino ED, Schulman A, Merrill TW, eds. Human Dignity and Bioethics. Notre Dame, IN: University of Notre Dame Press; 2009:284–93.

5. Foster C. Human Dignity in Bioethics and Law. Oxford: Hart; 2011.

6. Although the word “dignity” has started to proliferate only fairly recently in legal and philosophical discourse, its roots are very old: see note 5, Foster 2011, at 24–42.

7. See note 5, Foster 2011, at 24–110.

8. However, there is, of course, a vast and nuanced literature in which dignity is defined and dissected. Thus, for instance, Schroeder identifies four concepts of dignity: Kantian dignity, in which dignity is seen as “an inviolable property of all human beings, which gives the possessor the right never to be treated simply as a means, but always at the same time as an end”; aristocratic dignity, an outwardly displayed quality of a human who “acts in accordance with her superior rank and position”; comportment dignity, an outwardly displayed quality of someone who acts in accordance with society’s expectations of well-mannered people; and meritorious dignity, possessed by someone who has the virtues of temperance, courage, justice, and wisdom, and who makes the best of her circumstances: see Schroeder, D. Dignity: Two riddles and four concepts. Cambridge Quarterly of Healthcare Ethics 2008;17:230–8CrossRefGoogle ScholarPubMed, at 230. Killmister simplifies Schroeder’s scheme, reducing the key elements to two—the “universal Kantian sense” identified by Schroeder and the “aspirational sense,” which contains both comportment and meritorious dignity. Someone possesses aspirational dignity if he or she lives in accordance with his or her principles: Killmister, S. Dignity: Not such a useless concept. Journal of Medical Ethics 2010;36:160–4.Google Scholar Bostrom distills still further, identifying dignity first as a quality (to possess which is to be worthy or honorable) and, second, as the ground on which, many say, rests the full moral status of humans: see Bostrom N. Dignity and enhancement. In: Pellegrino ED, Schulman A, Merrill TW, eds. Human Dignity and Bioethics. Notre Dame, IN: University of Notre Dame Press; 2009:173–206. Bostrom’s scheme is broadly reflected in the writing of many others, e.g., Kass (see Kass L. Defending human dignity. In: Pellegrino ED, Schulman A, Merrill TW, eds. Human Dignity and Bioethics. Notre Dame, IN: University of Notre Dame Press; 2009:297–331) and many of the Catholic writers such as Gormally and Lebech: see, e.g., Gormally L. Human dignity and respect for the elderly. Paper presented at II Jornadas Internacionales Bioetica; 25 Sept 1998; Granada; available at www.linacre.org/elderly.html (last accessed 1 Nov 2013); Lebech M. On the Problem of Human Dignity: A Hermeneutical and Phenomenological Investigation. Wurzburg: Konighausen und Neumann; 2009. All these and other perspectives are discussed in Foster 2001, at 43–57 (see note 5).

9. Thomas Aquinas, talking about murder, thought that “a man who sins deviates from the rational order, and so loses his human dignity. . . . To that extent, then, he lapses into the subjection of the beasts” (Summa Theologiae, IIa IIae, q. 64.a.2.ad.3: cited Meilaender G. Human Dignity: Exploring and explicating the Council's vision. In: Pellegrino ED, Schulman A, Merrill TW, eds. Human Dignity and Bioethics. Notre Dame, IN: University of Notre Dame Press; 2009:253-277, at 253), but Pope John Paul II, whom one might have thought would agree with Aquinas, declared in his 1995 Encyclical Evangelium Vitae, Chapter 1(9): “Not even a murderer loses his personal dignity”; available at http://www.vatican.va/holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae_en.html (last accessed 20 May 2014).

10. “Whoever sheds the blood of man, by man shall his blood be shed, because man is made in the image of God” (Genesis 9:8).

11. Our circumstances, too, become part of us, and to make the most of them is to maximize our self-humanizing and to make more epic our story. Horrible circumstances can be the soil in which dignity flourishes exuberantly. Remember the example of the political prisoner. There was nothing undignified (except for his captors) about what was done to him—but it does not follow from this that dignity would not condemn what was done: the conditions in which he was kept were not those that maximize the total amount of thriving in the world.

12. Cited by Baroness Hale in Hale, B. Dignity. Journal of Social Welfare and Family Law 2009;31(2):101–8.CrossRefGoogle Scholar

13. Dworkin R. Is Democracy Possible Here? Princeton and Oxford: Princeton University Press; 2006, at 16–17, cited in Hale 2009 (see note 12).

14. See note 12, Hale 2009, at 106.

15. Herring, J, Foster, C. Welfare means relationality, virtue and altruism. Legal Studies 2012;32(3):480–98.CrossRefGoogle Scholar I am with Aristotle as against Plato, however, in believing that virtue is a necessary but not a sufficient condition of human thriving.

16. Christian Keysers notes:

Philosophers like Descartes have told us that the mind of another person is an invisible, obscure and impenetrable entity. Popular wisdom has it that beyond logical knowledge there are other ways to feel what goes on in the minds of others. For a long time, terms such as “(female) intuition” which reflect the idea that one can “tune” into the minds of other people, appeared to be superstitious nonsense, far removed from respectable science. But the discovery of mirror neurons has changed the way we conceive of the relationship between individuals. While we witness the actions of others, our own premotor cortex resonates as if it was doing the actions we observe. The mirror system builds a bridge between the minds of two people and shows us that our brains are deeply social.

. . . Our brains are indeed almost magically connected to each other. We are not born with a brain that deals exclusively with ourselves, but with one capable of feeling with other people. Our brain is set up to resonate with the people around us.

Keysers C. The Empathic Brain. Amsterdam: Social Brain Press; 2011, at 61–3.

17. This list is taken from Foster 2012 (see note 1).

18. See note 15, Herring, Foster 2012.

19. See, e.g., the Universal Declaration of Human Rights.

20. See Pretty v. UK (2002) 35 EHRR 408.

21. Pretty v. UK, supra: R(Purdy) v. DPP [2009] UKHL 45.