Philosophical Considerations on Active Euthanasia and Organ Harvesting Practices

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Organ Harvesting Practices

Karine Bréhaux

To cite this version:

Karine Bréhaux. Philosophical Considerations on Active Euthanasia and Organ Harvesting Practices.

Organ Transplantation: Ethical, Legal and Psychosocial Aspects. Expanding the European Platform.

Pabst Science Publishers, 2011, 2011. �hal-03006913�

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Philosophical Considerations on Active Euthanasia and Organ Harvesting Practices

Karine Bréhaux

Politiste et Philosophe, Docteur en Science Politique, Chercheuse CIRLEP, Université de Reims Champagne-Ardenne, U.F.R. Lettres et Sciences Humaines, Reims. France

Aim/Background:Euthanasia and organs transplant, as objects of study for a philosopher, question the political practices and represent relations between society and state. It’s neces- sary to ask to French society if it grants additional rights to people who compose it.

Methodology:According to classical sociology criteria (P.Birnbaum, J.Leca, 2000), society acts on people. Neverthless, when it’s matter of rights of life or death, does not it come back to individual to act on its social environment? In this case, we could find another sociology founded on other criteria.

Results: Choices of society in right to die and individual consent in organs donations show whether society recognizes or not citizens’wishes. During discussions about bodies’free dis- position, we find conflicts of values and common ideological positioning set up by political control and medical institutions.

Discussion:It returns us then in ethical, moral, juridical and sociological representation of death in our liberal states. Where are we up to in France ? Do health profesionnals agree with law and bodies government set up in French society?

Key words: still be completed!!!

Introduction

Organ transplant and euthanasia in France¹are burning questions. Everyone feels challenged by definitions, because they are problematic objects, crystallizing multiple cleavages before us, the bearers and actors whether we like it or not.

1According to the information report is the name of the information mission for the revision of the bioethics laws: "The French system has four characteristics: - it is based on the presumed consent of organ donation - it is based on a organization of the levy which can be assumed that it is not effective enough - pay the levy and the graft is insufficiently attractive - the psychological family donor is not taken into account. Presumed consent means that after one's death, each person is supposed to accept body elements of his for transplant if the person did not object to this gift. In France, a possible opposition should result in the inclusion of the person's lifetime on a national computerized register of refusals of removal of organs, tissues or cells from a deceased person. This register must be consulted before any sampling. It included 74 698 names validated at December 31, 2008. Report made on behalf of the information mission for the revision of the bioethics laws, Paris : Assemblée Nationale, 2009, pp.373-374.

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The understanding of the ethical controversy seems problematic for the philosopher. How to maintain the neutrality of policy analysis when it comes to such sensitive subjects, touch- ing on the human condition without falling -for some- into advocacy and for others into in- dictment?

This type of discussion limited to social facts and judgments that we pass on them is not sufficient for analysis. Therefore, this issue refers to various disciplines such as philosophy, law or medicine.

1. The Construction of the Object

Organ transplant and euthanasia, as an object of study for the philosopher, questions political practices and describes the relationship between civil society²and state. We must ask French society to determine whether they grant additional rights to individuals who compose it.

1.1 Methodology

According to the criteria of classical sociology, society acts on the individual. When it comes to the rights of life, death, freely available to the human body, does not it return to the individual to act on his social environment? If so, we see the formation of another sociology based on other criteria.

Addressing such issues in maintaining a neutral position seems pointless. However, one can distinguish the ideological approach of the scientific process and analyze the theoretical frameworks that control our political analysis.

Considering active euthanasia acts, applications for refusal of care, stopping and limiting active treatments, the removal, donation of organs as facts is not sufficient to meet the require- ments of objectivity. These practices are expressions of social intentions and are related to mental and social constructions (for example the image of the dying person, the individual and citizens, construction of metaphysical, ethical systems, theories of law, legal standards, medical rules, moral standards or so-called morals).

The multidimensional objects recreate the objects in conflict. Practices related to conditions of organ harvesting and requests for active euthanasia become points of convergence between opposing conceptions of life, death³, law, politics, ethics, morals, ethics and gender.

Liberalism and puritanism, which sometimes reduce the debates, are only two poles where tensions are organized, where practices related to organ donation and euthanasia meet.

The philosopher cannot grasp these objects without naming them. Any qualification in a field where the unity of the object disappears behind other opposing qualifications, has already an advantage. In French legal practice⁴, the concept of euthanasia has no legal existence and

2Expression for today self-organization of citizens regardless of state and political parties, essentially by means of associative life.

3On this point see the reflection of the Working Group "Operational Definition of Death in the medical environment European transplantation in relation to organ harvesting." Marie-France Mamzer, David Ro- driguez, Isabelle Plu, Jean-Christophe Tortosa, Henri Kreis, Eric Martinent, Manuel Wolf, Karine Bréhaux.

4The definition of euthanasia is currently recognized, is that an act which aims to end with intent the life of an incurable person, to shorten his physical and mental suffering. It is therefore a definitive act which has

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is inserted in no code. It implicitly treats the issue in terms of patients’ rights at the end of life.

2. The Codes which are Embedded in Normative Debates

The characteristic of speech in this type of social debate is to highlight several facets of the phenomena⁵, so that any analysis highlighting this aspect of the phenomenon, provides support to a cause. In analyzing the activities related to organ donation euthanasia as social practice, they must be placed in frameworks that condition.

As Bertrand Badie said:

“Far from contradicting the methods that apply directly to the analysis of social, cultural analysis is destined to be inspired, as the only reference to Weber al- ready allowed to suggest. Instead of a“compelling story” or to influence its course, culture is made in history, making more relevant the distinction be- tween short times and long times, those that refer to the event and those which relate to structural effects: the first involves the renewal of cultural traits, the lat- ter to reproduction and the adequacy of their oversight function.“⁶

These frameworks are characterized by strong normative structures such as medical institution, justice and state. Among these structures, the law appears as the obligatory reference and contested, against which acts and speeches are confronted, but also the expression of litigation. From the perspective of law, the legislator in decision-making cannot transgress the principles of dignity, unavailability of the human body.

Another example related to our objects, is the risk of abuse, reification of the human body, finally an abuse of power by the individual on himself:

«The use of motherhood for others, also called „womb rental“ by its opponents - this term to indicate very clearly both how the transaction is subject the hu- man body and its interchangeability - is it compatible with the principle of dig-

the effect of extinguishing the legal personality of the individual. In legal terms, euthanasia is outside the scope of French law. There is still a legal vacuum around euthanasia. The act of active euthanasia is prohibited by French law.

A distinction is made between direct euthanasia and indirect euthanasia. Direct euthanasia is actually pre- ferred to active euthanasia. As for indirect euthanasia, it is the administration of analgesics with the second and therefore death is not sought. Finally, when a third party agrees to kill a person in end of life wishes, he raises the issue of recognition of a right to assisted suicide.

Euthanasia raises the issue of medically assisted suicide, that is to say, the administration of an act performed euthanasia on the patient himself and with the help of a third party. French law punishes suicide or complic- ity. This zone of lawlessness led to the absence of penalty situations medically assisted suicides. Physician- assisted suicide, similar to euthanasia practices, is inconsistent with Articles 2 and 38 of the Code of Med- ical Ethics of 1995. According to Article 2: "The physician, serving the individual and public health is to work in respect of human life, person and dignity." According to Article 38: "He [the doctor] has no right to de- liberately cause death."

5The shortage of organs is an example.

6BADIE, B. Culture et politique. Paris : Economica, 1983, p. 81.

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nity? The question therefore is how far the Legislator has the duty to protect the individual against himself/herself.»⁷

2.1 Processes Related to Politicization Around Organ Transplant and Active Euthanasia

The process to politicization of practices related to organ transplant and the right to die follows the same course to democracy in each country. From the underground acts of euthanasia in recognition of the refusal of care, highlighting the possibility of medical practice tax and transplantation of organs between individuals in social acceptance and a legal-moral controversy around the removal of organs after cardiac arrest and implementation of the Jeanneney circular of April 24, 1968 - the intimate desires to stop, check and make available one’s life and body are transformed into political problems.

By what ethical courses do objects acquire multifaceted social lives and are they considered by political choice as falling within its field of intervention?

The process of emergence⁸involves the transition from one field to another, the „exit“ from a medium and „entry“ into another. There are situations which, at a specific moment, are not considered part of the political field. If one takes a second specific moment, some of these situations are the subject of intense political treatment. Our first question concerns the mechanisms of transformation at work during these periods and conditions of emerging en- gagement processes of policy issues. This means ability to leave personal contexts, to per- ceive them not as isolated but as a general willingness to change the established order. The ability to name and link the social objects, of the availability of organs and the right to re- fuse care to general categories, generosity, altruism, the need for individualistic faith - or even inventing new names to designate the location of the organs - is a first set of variables in the process of emergence.

Issues related to these practices become sensitive at times. Didier Sicard, president of the National Consultative Committee on Ethics suggests including “the location of uterus in the field of organ transplantation” Dr. Didier Sicard, president of the CCNE (2), also considered

“the unique opportunity offered to a woman to lend her womb to her own sis- ter, under the supervision of the Agency of Biomedicine and conditions only within the family, in holding that strictly speaking, surrogacy could enter the field of organ transplants“⁹

They are captured by political controversies while investing the fields of public health, justice and ethics. The politicization process of euthanasia and related practices in sampling and or-

7"The use of maternity others, also called" womb rental "by its opponents - this term to indicate very clearly as the transaction is subject the human body, its interchangeability - is it compatible with the principle of dignity? The question therefore is how far the Legislator has the duty to protect the individual against himself.

"Report made on behalf of the information mission for the revision of laws Bioethics Roundtable January 21, 2009, Paris: Assemblée Nationale, p 157.

8We resume here the methodology, see FAVRE, P. Sida et politique, les premiers affrontements (1981-1987).

Paris: L'Harmattan, 1992, 206 p.

9Report made on behalf of the information mission for the revision of laws Bioethics Roundtable January 21, 2009, Paris: Assemblée Nationale, p 161.

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gan donation are changing in the regulatory process such as the medicalization of the termination of the end of life and litigation ethics of transplantation.

2.2 The Crystallization of Participants: The Manifestation of Individual and Institutional Desires

A condition for success of the process of emergence lies in the existence of a class of people likely to echo the concerns of individuals. In our practical case, these groups may be stereotyped: the specialized agencies which are designed to deal with these problems (CC- NE Biomedicine Agency¹⁰) participants sharing common interests in the political representation of emerging social groups frequently confronted with problem-health professionals and whose interests are related to success or failure of a social group from which they emanate.

As part of the medical activity of resuscitation, the implementation of judgments of treatment of active resuscitation for a person whose prognosis is catastrophic renews the inter- rogation practice of taking organs hypothetically made possible by the strict application of the Act of April 22, 2005 on the rights of patients at the end of life¹¹.

2.3 For or Against the Recognition of Organ Harvesting from Refusing Care?

This situation questions the interaction between demand for active euthanasia, for countries having established legalization or decriminalization, the cessation of unreasonable treatment in a collegiate procedure and demand for organ harvesting conditioned or not by a form of consent¹². How to avoid potential conflicts of interest between the treatment and removal of bodies whether in situations of deceased donors with brain death or deceased donors af-

10Biomedicine Agency is in favor of maintaining current law: "As long as he/she is healthy the person is less concerned about the use which might be made of his/her body and does not concern a document show- ing wishes in this area. This remark follows the opinion of the Director General of the Biomedicine Agency, which before the fact-finding mission, argued for maintaining the current system of presumed consent. In fact, that consent is presumed or explicit, families are always consulted". Report made on behalf of the information mission for the revision of the bioethics laws, Paris: Assemblée Nationale, 2009, p 376.

11This type of situation between category 3 classification called Maastricht: "The category III is for people for whom a decision to stop treatment in intensive care is being taken because of their catastrophic neurological prognosis. "Report made on behalf of the information mission for the revision of the bioethics laws, Paris: Assemblée Nationale, 2009, p 396. On this point see section 9 of the French law concerning the rights of patients at the end of life of April 22, 2005: "Art. L 1111-13. - When a person with advanced or terminal stages of a serious and incurable illness, whatever the cause, is unable to express his:her will, the doctor may decide to limit or stop treatment unnecessary, disproportionate, or having no other object than the one artificially prolonged the life of that person, having complied with the procedure defined by the col- lege code of medical ethics and consulted the trusted person referred to in Article L. 1111-6, family or, fail- ing that, one of his/her relatives and, where applicable, advance directives of the person. His decision, mo- tivated, is included in the medical record. "The physician safeguarded the dignity of the dying and ensures the quality of his/her end of life by providing care referred to in Article L. 1110-10."

12 "The use of donor class III Maastricht raises two important challenges to ethical decisions, highlighted by the Belgian experience. The first is the relationship established by this procedure with euthanasia and the patient may fall thereof. This danger has been well received by practitioners in Belgium, which concluded an article on the removal of organs after euthanasia by the need for a clear separation between the request

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ter cardiac arrest if not prohibited by law as currently in France? The debate on a possible reflection on the lifting of the ban on organ harvesting in a situation of category 3 in the Maastricht classification remains open:

“In any event, the supporters of a reflection on this subject have emphasized the need to control strictly the case: „It should ensure that it is national, trans- parent, secure from the medico-legal point of view and regulated by a decree of the Council of State. It should be that the time between intubation for neu- rological distress and the procedure is less than 7 days to avoid putting off de- cisions. Donors concerned are only those having any of the following medical conditions: cerebral anoxia without N20 (1), head injury with bilateral contu- sions of the brain stem, brain stem hematoma or hematoma deep with destruc- tion of the thalamus and intra-ventricular hemorrhage mass. The agreement of the family would be requested before extubation. A certificate stating the high probability of poor neurological prognosis signed by a physician-intensivist and a neurologist would be required. The procedure would be centralized by Bio- medicine Agency, which would keep records, and the evaluation by a commit- tee of independent experts. We must have solid and national safeguards of the strictly controlled procedures. The text that would surround this particular pro- cedure should specify the point of no return to consciousness, intentionality of medical procedures, deadlines and criteria of medical acts and their ethical di- mension. This debate can be opened to the learned societies of emergency, re- suscitation and surgeons.“¹³

This reflection is itself the subject of proposal number 62 prepared by the information mission for the revision of laws on bioethics.¹⁴

3. The Institutionalization of Private and Intimate Issues

Given the urgency of the social crisis, political choice reacts obeying a logic. The political field is saturated to the extent that, being one of the „generalist“ bodies within the social system, it is responsible for many issues. The policy is a field that weighs many other rights of referral, including those exercised by the government and the judiciary is itself under severe

for euthanasia, the euthanasia procedure and the sampling procedure Organ. (1) A congress held in Bel- gium in 2008 reported that organs were taken from euthanized 4 persons, 2 suffering from locked in syn- drome and 2 suffering from multiple sclerosis. (2) But since these patients suffered from severe neurological diseases, one wonders what was the proportion of depressive factors in their decision. The second is the temptation for the physician to expedite the termination of treatment to remove organs. As stated by Professor Bruno Riou before the mission, "If you do nothing proactive, you do not know when to intervene and cardiac arrest while awaiting organs may suffer. If you are pragmatic as the Belgians and Americans to overcome this problem, you go down the patient in the operating room, you are ensuring that the period is as short as possible and that the sampling is done when you have decided. (3)" op.cit, p 397.

13Report made on behalf of the information mission for the revision of laws on bioethics, op.cit, p.400.

14"Proposal No. 62. Invite companies to open a scholarly debate on the sampling procedure after cardiac arrest (Maastricht category III). This debate should focus on the medical criteria for the transfer, the intentionality of medical, ethical dimension and the time. " op.cit, p 400.

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constraints. The constraint is based on competition between political and social participants.

The political field is said to be active. It is a „transmutation“ of problems, since it tends to change the nature of social problems even as it takes over. By moving an issue from private to public, it makes political action legitimate by changing the controversial ethical issues of public health. On behalf of general interest political choice appropriates intimate questions.

The crystallization of the participants takes place around new public health policies.

The emergence of debate around the principles of availability of the human body, the right to control their lives and their bodies up to the end in France is the result of a composite process. To stick to the first phase, we see applied at different times and for various social segments, the emergence of four models: the gradual emergence through multiple channels, the emergence instant, automatic activation of the political field and the emergence captured.

The gradual emergence through multiple channels is to point out an individual believed to be in a situation requiring a revision of the law. An individual is fit to undertake a series of actions that can lead to his problem being discussed at the highest state level. The rise is gradual, sometimes very slow and it is „so-called multi-channel“ because the person seeking support of any kind may send forces to mobilize diverse forces¹⁵(cf. cases Vincent Humbert and Chantal Sebire, association CLARA activist for the legalization of surrogacy and the recognition of a deed of gift between women who have given their free and informed consent).

Emergence refers to the instantaneous character of suddenness and severity, such as the activation of the political field extremely fast. The use of violence, including terrorist activity, aims to produce this acceleration of knowledge. The social crisis is a strong constraint on policy. The resumption of lawsuits against doctors who helped patients die is the acute phase during the debates.

The automatic activation of the political field does not result solely from mobilization of participants’and citizens’ demands, but also problematic situations identified under the vigi- lance function of certain institutions or individuals. Activation of the political arena may be more automatic yet when, through the voices of law, an individual¹⁶can compel the political field to take a stand. In France, an action for abuse of power may lead to the late cancel- lation of a decision. On several occasions, political parties and associations use the non-con- formity of law on voluntary termination of life. With the second article of the European Con- vention on Human Rights concerning the protection of life this is criticised.

They say capturing the emergence, whenever an institution outside the political arena begins to implement the collective management of a problem and is recognized as the representa- tive of the class of the target population. The movement of patients characterizes this phenomenon. Political institutions can or cannot be created, as is the case with committees of ethics and learned societies, and gain legitimacy in the redefinition of social problems.

15For example the hierarchical way, association, litigation, parliamentary and governmental.

16See cases Diane Pretty, Mrs B. and Nicolas Perruche dans Bréhaux, K., Les dispositions européennes en matière de droit de mourir, Prochoix, 2002, n° 22, p. 48-57.

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3.1 A New Form of Political Discussion: “Citizen-forums”

The policy takes into account problems after having established itself in political issues. Any- thing that is not thought or thinkable in terms of the political field, faces an effect of censor- ship.

The „professional politicians“ based on profit, exploit these issues on the political market.

Laymen think most often they are not competent to translate their problems into political terms, nor allowed to do so. However, consultation is needed to validate the deliberative democratic process the example of citizen forums¹⁷in Bioethical parliamentary Convention.

Any social issue concerning the human and its principles is transformed into a political issue after transcription into ethics intelligible to laymen.

There is talk of reversing the flow when a problem is defined as such by the political field and diffused. This behavior is visible in some sectors of the social field, as in the management of hospitals and clinics, which addresses the delicate issue of „quality of life,“ the shortage of organs, „setting targets Census figures of donors in a state of brain death with region- al health agencies, so that France is catching up in the census. „There are more emerging, but a reversal of emergence. Controlling the end of life and fate of organs is sent towards the medical and justice, „neutral“ areas and external to politics.

3.2 Political Culture as an Explanatory Factor of Democratic Choice

Public political culture in France is an important factor in the construction of market solutions to social conflicts. Different political cleavages divide societies. These divisions carry out the identification of cultural components inherent in each society. This is essential to our purpose, because the process of politicization of organ donation euthanasia refer to tradi- tional and postmodern secularism. In the case of Belgium¹⁸, the association of political cleavages in the system of pillars provides a unique way of managing the social crisis by political liberalism. Despite differences, the French and Belgian cultural visions do not lead to ques- tioning of political liberalism. The liberal treatment of ethical and professional logic does not lead to a failure of political liberalism or a victory for community vision.

Political liberalism is able to construct two solutions to a political problem, without compro- mising its own principles, including that of tolerance. On behalf of general interest at one point decriminalization of social practice is refused. It is always through the collective interest, in other circumstances, this same practice is decriminalized.

17Thinking citizen emphasized the need to reform the principle of presumed consent is currently at the base of the French system, on the legalization of the practice of giving the Crusaders, the current threat of commodification of the human body, the establishment of a register to choose where potential donors may know their decision: "The words of a panelist at the forum in Strasbourg, in this regard are quite eloquent:"

The vocabulary used in the bioethics laws in 1994 and 2004 speaks of elements and products of the body or health product. Do these terms respect dignity and meet the values of solidarity and generosity that they are supposed to cover? These words alone are they not an admission of commodification of human body?

"Final Report of the States General of Bioethics, 1 July 2009.

18We propose here as a definition of cleavage, the deep division within a company resulting in persistent tensions and the creation of pressure groups and parties opposed to each other on the subject of conflict. Been identified in Belgium, three major divisions formed in the nineteenth century Church vs State (philosophical divide), haves versus workers (socio-economic cleavage), center versus periphery (Community cleavage). A fourth cleavage seems to form the cleavage materialism versus post-materialism.

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This figure of general interest is intended to offset the social demands. In cases that concern us, these are claims to the right to freely dispose of one’s body, the right to die and the possibility of linking the two. The public interest promoted by political liberalism took shape in various stages of regulation of ethical controversies. Narrating social facts is organized around key moments in the historical dynamics of each country. These moments consist of periods of conflict, coercion periods and periods of compromise. They do not succeed pure- ly and simply, but intersect and overlap each historical period. On their way, societies build political compromise, more or less adequate ethical controversies. Faced with the same social crisis, political liberalism handles conflict differently.

Political treatment of the right to die does not come as a result of profound social mobilization. By the early 1990s, particularly through the hype about certain French affairs, the political problem of recognizing the right to die is inevitable. In 2005, French political parties agree on adopting the law on patients’ rights and end of life, “the Leonetti Act”. Upon application, this law has been criticized in medical¹⁹and political circles²⁰. Although mobilization is less significant in human affairs related to requests for euthanasia, the activism of social participants is still as strong.

Regarding the activities related to organ donation, the Bioethical Parliamentary Convention 2009 shows a divergence of opinions between the citizen-forums in Strasbourg in favor of reforming the current system, the Biomedicine Agency for the maintaining of the system and the medical institutions divided on the situations of type 3 according to the classification of Maastricht.

Conclusion

It is up to each state to regulate this type of debate. These are cultural differences that affect societal choices. This is the side of culture and theory of the rule of law where we find some answers. The reactivation of the theme of rule of law is appearing in liberal countries, where the concept has become, by virtue of its inclusion in Basic Law, the cornerstone of the system of protection of freedom.

19See study BADET, E., BRUNNER, A., KNEIB, A. et al. La participation citoyenne dans le champ de la santé:

la loi du 22 avril 2005 "relative aux droits des malades et à la fin de vie". Mise en application de la loi et changements au sein des établissements hospitaliers et d'accueil pour personnes âgées. Rennes: Ecole Na- tionale de Santé Publique, 2007, 44 p.

20GORCE, G. et al. Proposition de loi pour l'organisation d'un grand débat sur la fin de vie et l'évaluation de la loi numéro 2005-370 du 22 avril 2005. Assemblée nationale, 22 avril 2006.