Special Section: Open Forum

Dignity and the Ownership and Use of Body Parts CHARLES FOSTER 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: dignity; body parts; property; Article 8; Bayesian; utilitarianism; resources

The notion of dignity is ubiquitous in national and international declarations and in professional regulatory codes. Although philosophers have tended to be suspicious of it (worrying that it is too vague to be useful, or that it has disreputably theological origins), its ubiquity means that the law will have to work with it. The law should be happy about this inevitable partnership. Many of the law’s seminal principles, such as rights and duties, are second-order principles, deriving their authority from something deeper. Traditional legal formulations leave many questions unanswered. Why does a human have a right that a stone does not have? Why might I owe a duty to someone I have never met? It is at least arguable that dignity is the foundational principle from which these other principles derive. That contention depends on “dignity” being given a hard-edged meaning. I propose a meaning that is exegetically consonant with the other mainstream suggestions (all of which, I argue, describe part of the anatomy of dignity) and that is based on human thriving. In this article I outline this meaning briefly and suggest a practical model for the deployment of the meaning. This is a broadly utilitarian method, which looks at the effect of a transaction on the total amount of dignity (as I define it) in the world. The dignity interests of all stakeholders are taken into account. Those interests are weighted according to a number of factors, including proximity: thus, for instance, the dignity interests of a patient would be likely to attract a higher score than those of a patient’s relative. I then go on to indicate what this has to add to more traditional ways of looking at the ownership and use of body parts. I focus on the relationship between this I am grateful to Professor Jonathan Herring and Dr. Imogen Goold for their comments on an earlier draft. Cambridge Quarterly of Healthcare Ethics (2014), 23, 417–430. © Cambridge University Press 2014. doi:10.1017/S0963180114000097

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Charles Foster account and property-based analyses. For this comparison I use a number of hypothetical but realistic case studies. I conclude by suggesting a dignity-based regulatory framework for organ donation by live and dead donors, and, more generally, the use of organs and tissues from live and dead subjects. I explicitly compare the results of such a regime with those that can be achieved by propertybased regimes. Property: An Inadequate Model Property analyses of problems involving body parts sometimes do a workmanlike job. Sometimes they fail abjectly. This inconsistent performance should make us wonder whether property is the most fundamental principle in play, or whether it is a second-order principle, drawing on something deeper. If it’s not the parent principle, wouldn’t we do better if we employed the wiser parent? Take three examples:1 1) A child’s heart, retained for the purposes of medical research: The child died of a disease being studied at the institute that has retained it. Its heart, which is particularly useful to the researchers, was removed at postmortem without the knowledge of the parents. The rest of the body was returned and buried. The researchers say that they did not seek the parents’ permission because they knew that it would have been refused. They are unrepentant, asserting that the value of their research to future children trumps any ethical quibbles about parental consent. 2) A human ear ashtray: Medical students steal an ear from the cadaver they are dissecting. Back at their student squat, they use it as an ashtray. The cadaver was donated for the purposes of medical education, and the donor (the person whose body it is) would have been outraged at this misuse. 3) A human head football: Children play football in the street with the head of an unknown person, with no living relatives, dug out by a dog from a mediaeval cemetery. I assume that everyone would agree that, ethically, something is wrong in each of these cases. Even a cold-hearted, thoroughgoing utilitarian, happy about the end result in example 1, would frown on the way that the researchers had gone about the business of ensuring that science marched forward. They might acknowledge that plundering the child’s body per se was an evil that had to be weighed against the good that resulted from it. They would certainly acknowledge that plundering it without telling the parents was an evil. What is the best language for describing the wrongness in these examples? Whatever it is, it is not the language of property. The parents in example 1 would be outraged to hear it suggested that the wrong committed by the researchers was morally identical to shoplifting. If the only language available to them was the language of property, they would agree that they had better title to their child’s heart than the researchers, but that is hardly an adequate way of expressing their outrage. No doubt the students who stubbed out their cigarettes in the ear are in breach of their obligations as bailors. But there’s more to say than that about their conduct. The children who are playing with the head are doing something ethically different from children playing with a stolen football.

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Dignity and the Ownership and Use of Body Parts The notion of property, because it is old and experienced, has a number of remedies in its portfolio. Some of those might give redress for some of the evils inherent here. The law of bailment, for instance, might allow seizure and reburial of the body parts. But even if a remedy is adequate, we shouldn’t assume that the law that leads to the availability of the remedy is necessarily adequate. And in all the cases cited previously, property’s remedies aren’t adequate. The parents of the dead child will want more than the return and reburial of the heart. They will want the researchers to be disciplined by the professional regulator, before whom the gist of the allegations against them will be, “You didn’t do what decent doctors do.” Being a decent doctor involves more than merely acknowledging the consequences of title. The medical students, on similar grounds, are likely to be thought to have an attitude wholly inconsistent with the practice of medicine. Denunciation of that attitude is the real remedy—not the repatriation of the ear. And the footballing children need some stern lessons in respect for humans: it’s not enough simply to take the head wordlessly back to the cemetery. Other, more fine-grained, more legally sophisticated criticisms can be made of the property model. But for the moment I will settle for the rather obvious observations mentioned previously. Dignity: A Better Candidate If property can’t do the job, what can? To decide that, we need to listen to the forms of language into which we inevitably fall when we express our own outrage at the acts in these examples. There is no way around it: we all find ourselves talking in the language of dignity. Medical regulators, when expressing the respects in which the doctors are not decent doctors, will say that they failed to respect the dignity of the child. This is an unfashionable conclusion. Dignity is viewed with suspicion by many lawyers and philosophers. It is not surprising. Its enthusiastic proponents have used it both to justify and to condemn (for instance) capital punishment and abortion. There is a natural suspicion that a principle so promiscuous is unprincipled—that, if it can stand for so much, it really stands for nothing. That is precisely what many have concluded. Bagaric and Allan, for instance, sneer: “Dignity is a vacuous concept.”2 Others think that dignity really boils down to respect for autonomy or respect for persons,3 or that dignity has no philosophical or legal work to do, because rights do it all.4 I have answered these objections in detail elsewhere,5 and here make only a few points. First, I entirely agree that the notion of dignity does not deserve respect (let alone the status of the most fundamental principle in ethics or law) simply because of its antiquity and the sanctity of the contexts in which it has historically been invoked. Dignity has a smug tendency to rest on its laurels. Its advocates have often responded to criticism of the use of dignity by philosophical namecalling—along the lines of “You don’t like dignity, and therefore you must be a Nazi/ communist/utilitarian/shallow reductionist.” That’s not argument. It rightly produces derision from the dignity deniers. They tend to respond in kind, saying words to the effect of “You’re a credulous, theologically contaminated mystic.” And so it goes on. A lot of the literature on dignity is comprised of these sorts of exchanges. It is not amusing for long, and not productive at all. If I have to take sides in this debacle, I am with the dignity deniers. Possession of an old and august name6 does not, without more explanation, confer a right to

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Charles Foster be heard in a serious philosophical or legal debate. Dignity needs to demonstrate that it brings more to the table than merely the window dressing of ethical seriousness. It needs to say explicitly what it stands for; what it means; and what it can give that autonomy, or beneficence, or respect for persons cannot. Second, although dignity needs to set out its stall, so do its competitors in the ethical marketplace. To rest an argument on autonomy is hardly more satisfactory and less question-begging than to rest it on dignity. Third, rights-based analyses, and those that adopt notions such as respect for persons, are plainly not starting from the lowest possible legal and philosophical denominators. Why does a human have rights, and a stone not? Why should I respect a person more than a shed? To give an account of rights and respect, one necessarily has to resort to the principles on which those ideas are based. If that’s right, one is likely to get more satisfactory answers if one starts from the parent principle, whatever that might be. Fourth, like it or not, lawmakers and the designers of international, national, and professional codes have felt the need to resort to dignity. That means that, however much dignity’s detractors might dislike the notion, they are going to have to work with it and make it work. In fact, I suggest, it is not so hard to make dignity work. The first task is an exegetical one. One has to examine the literature on dignity (and there is a very great deal of it), to determine what is being discussed. That is an arduous exercise. Again, it is one I have undertaken elsewhere.7 It is no good to come up with a completely new principle; arbitrarily, and nonconsonantly with previous usage, dub it “dignity”; and then set it to work. Quite apart from the arrogance of assuming that I had come up with an idea that everyone else had wholly missed, it would be an idea that was dangerously unsupported by the canon of literature on dignity, and it would be unable to help in construing the various instruments in which “dignity” features. The problem in detecting a consistent theme in the various notions of dignity that feature in the canon is the one already mentioned: dignity seems able to generate wholly different conclusions to the same problem. There are two ways that this can happen. The first, and most common, way is when each of the two opposing sides of an argument uses a definition of dignity that they perceive as different from the definition used by the opponent. Each then accuses the other of misunderstanding the definition. (I come to the second way in due course, in another context: this is concerned with radically different weights being allocated to a criterion that, in itself, is clearly a legitimate dignity criterion). There are, broadly, two ways in which dignity is used in argument.8 First, it is seen as an inalienable status (often with footnotes invoking the imago dei). And, second, it is seen as a quality demonstrated by people who are dignified. So, for example, in an argument about capital punishment, execution may be applauded by those who say that a murderer has, by his act, shown an absence of those qualities that collectively constitute human dignity, and accordingly it is right (or not wrong) to kill him; and the execution may be decried by those who say that, however badly he has behaved, the murderer remains human, and accordingly it would be contrary to human dignity to strap him to a chair and electrocute him.9 (Of course, the capital punishment debate has been warped by religion, and in fact those who assert most loudly their belief in the inalienable status of humans are likely to be those clamoring most loudly for the death of the murderer. But that is

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Dignity and the Ownership and Use of Body Parts a diabolical theological irony: it does not disturb the definitions that each side will be using. Religious would-be executors will want to flick the switch because the murderer has committed the offence, detailed in the lex talionis,10 of effacing the image of God in his victim: he is being punished for an offence against inalienable human dignity). I italicized the words “they perceive.” That is very important. For in fact both sides are using, if they could only see it, the same definition. Confusion occurs because the attributes associated with dignity are wrongly seen as like chattels that we can possess and lose, as something separate from us, as tools that we use for doing life. In fact, they are an inevitable corollary of our status. The attributes are ways of being, not of doing life. One cannot have the status without its corollaries, or the corollaries without the status. Dignity is easier to recognize than to define. That, in itself, is hardly a reason to think that it is amorphous. The same is true of elephants, which are not amorphous at all. Yet the difficulty of defining dignity has featured prominently in the criticisms of those who say that dignity is in some way philosophically unsatisfactory. Those criticisms are themselves philosophically unsatisfactory. One might expect a description of a fundamental characteristic of a creature as complex as a human to be correspondingly complex. Consider two further cases. First, a political prisoner, sentenced to death for an offence he did not commit, is daily raped and tortured. He steadfastly refuses to complain or to curse his captors. To the contrary: he always asks, quite genuinely and without the hope of any personal advantage, about the welfare of his captors and their families. He is cheerful and kind and gives his food to fellow prisoners. Whatever dignity is, he has it. Second, a profoundly brain-damaged girl is left naked on a hospital trolley. Youths in the nearby waiting room lustfully enjoy looking at her. She enjoys the attention. Is that wrong? Yes. And why? Autonomy does not supply the reason. Insofar as she is capable of autonomous thought, she would exercise her autonomy to continue the mutually gratifying exposure. Nor are satisfactory reasons supplied by any other principle that does not, expressly or impliedly, invoke human dignity. The cases, as well as those of the child’s heart, the ear ashtray, and the human head football, can only be discussed in the language of dignity. Yet what is the common thread in those cases? It is an Aristotelian thread: it is to do with human thriving. The political prisoner is thriving insofar as he can in the grim circumstances: he is engaged in the quintessential human activity of laughing at vicissitudes and the void. Doing quintessentially human things (particularly where it is hard to do so) is a humanizing thing: we thrive as humans when we do quintessentially human, humanizing things. The girl should not be gazed at, even if she wants to be, because humans, whatever they are, are more than objects, and to recognize that tends to the humanization of the viewer, the viewee, and the society of which they are a part. A similar conclusion applies to the body part examples. Where one uses the word “quintessential,” one is importing an objective idea—and, indeed, there is an objective element in the formulation: one can choose to do more or less human, humanizing things as judged by the objective standard. If this common thread is, exegetically, dignity, then dignity is about being human well. A dignity-enhancing measure is a humanizing measure. There are things that are objectively humanizing and things that are not. Indeed, although there will be some debate about whether or not some activities humanize (a fundamentalist Christian, for instance, would say that homosexual activity dehumanizes), and

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Charles Foster although the starting point for any definition of human thriving should be a (rebuttable) presumption that each person knows best what is good for her, there is, at least in theory, an ascertainable answer to the question, for any particular activity proposed by any particular person: “Will that help her thrive/humanize?” (I enlarge on this claim subsequently.) Dignity, then, is objective human flourishing. The “status” I refer to in my formulation of dignity should not be misunderstood. It does not depend on any notion of the imago dei (although I don’t at all discount the possibility that the imago dei might generate a result similar to mine), or on any account of human specialness that asserts that humans are intrinsically better than nonhumans. I deal only with human status, because this is an article about how humans should behave in relation to other humans, not about how humans should relate to mice, or how mice should relate to mice. Human dignity does, however, have something to say about how humans should relate to mice (but only in two respects: first, by using more or less unsatisfactory analogies with how humans should relate to one another and, second, by examining the effect on human thriving of the different ways that humans relate to mice.) I don’t for a moment discount the possibility that there is such a thing as the objective thriving of mice—and accordingly that it is possible to say that mice have dignity, with some ethical corollaries. But I have no idea how I would identify that mouse thriving. So, in response to the allegation of speciesism, I plead not guilty. I haven’t got the information necessary to be speciesist. The suggestion that there is such a thing as objective human flourishing sounds contentious. But isn’t it obvious enough? There are some things that are good for us (such as companionship and the absence of disease), and some that are not (such as isolation and arsenic). I remind myself of the overstated dangers of the is-ought gap (a notion that, if it were anything like as wide and vertiginous as contended for by the typical analytic philosopher, would stop the whole business of ethics) and contend that it is possible, at least in principle, to determine empirically what constitutes human thriving. That is a big claim. It cannot be justified fully here. But it can be (briefly) exemplified. Two characteristics of thriving human beings, wherever you are in the world, and wherever you are in time, are bodily integrity and relationality. Nobody seriously contends that it is better to be ill than well. And although some hermits write involved, self-justifying treatises on the joys of isolation, they evoke the pity of the happily harassed family man. We are quintessentially relational animals. The boundaries between me and my neighbors are blessedly blurred. It’s hard to know where Charles Foster begins and where he ends. It is impossible to define me except by reference to the web of relationships in which I exist and of which, to a large degree, I consist. That’s one of the major reasons why the traditional accounts of autonomy, which presuppose an atomistic “I” whose preferences should be sovereign, fail abjectly. Their subject, the “I,” doesn’t exist at all—or, at least, not in the form in which the accounts paint it. We must be careful not to overstate the case for the centrality to thriving of physical integrity and relationality. In the first place, they are only examples of thriving characteristics. And second, although it is true that no one sensible would pretend that a physical disability is per se a good thing, a permanent disability might well (and very often does) become so entangled with the identity of the person that to eliminate the disability would be to eliminate the person.11 Our main concern should be not abstract human thriving but the thriving of a particular

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Dignity and the Ownership and Use of Body Parts human being. It is her humanization that should be the object of ethical discussion. Acting ethically toward her involves her becoming more truly what she is— or, given the other characteristics that constitute thriving, would become. The self is part of the context in which the thriving must happen, and the body is inextricably tangled with that self. Another part of the context, of course, is the set of circumstances in which the person finds herself. All of which boils down to the proposition that human dignity is objective thriving in the biological, societal, geographical, and other circumstances in which the individual finds herself. It is the business of living as full a human life as one can (as judged by objective, empirically identifiable characteristics) in the body, the self, the family, and the town that fate has dealt you. This raises a number of unanswered questions. But for present purposes, only one needs to be preemptively answered. That is the question about the sense, if any, in which it can be said that a person who is not aware of anything at all can be said to be thriving. Does one not need to know that, for instance, one’s bodily integrity is affected by a particular intervention to be able to say that the intervention is, in dignity/thriving terms, a positive or negative one? Take, for example, a patient in a permanent vegetative state (PVS). If the diagnosis of PVS is right, by definition the patient neither knows nor will ever know anything about anything at all. If we’re talking about bodily integrity, one could stick a knife into her leg and she would know nothing about it. If we’re speaking about relationality, she has no idea that her devoted relatives gather around her bed, holding her hand and talking to her. Is there any sense at all in which she can be said to be thriving? Yes, and two points can be made in support of this conclusion. First, her story (which in many ways is her) continues. The story is the necessary substrate for any ethical considerations that concern her. And second, there are good stories and bad stories, and it is better for her (a betterness accurately described in terms of thriving) for her story to be a good one. That is why we rightly say that it would offend her dignity were her body to be used by medical students to practice rectal and vaginal examinations. These are the only thriving interests possessed by her that are in play when we consider what should and should not be done with and to this patient. But there are others. Most obviously there are the interests of her family and friends. The patient might be incapable of appreciating her relationships, but that does not mean that she does not have relationships, or that the appreciation of those relationships is not an important part of the thriving interests of others. Going to see her each day might be the only thing that keeps her parents going. Then there are the interests of her clinicians and carers. We’d hope that they are not icily detached technical functionaries. If they are, they’re not thriving as they should. What is done to the patient (and particularly what is done to her by her healthcare team) will affect the healthcare providers’ own thriving. A prison warden who forces a prisoner to eat his own feces isn’t primarily affecting the dignity of the prisoner. But he’s massively eroding his own. Mountfield and Singh talk about dignity as Janus faced—looking at both the inflicter and the inflictee.12 Ronald Dworkin notes that if . . . objective importance cannot be thought to belong to any human life without belonging equally to all, then it is impossible to separate selfrespect from respect for the importance of the lives of others. You cannot

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Charles Foster act in a way that denies the intrinsic importance of any human life without an insult to your own dignity. . . . Kant insisted that if you treat others as mere means whose lives have no intrinsic importance, then you are despising your own life as well.13

And Baroness Hale observes that “respect for the dignity of others is not only respect for the essential humanity of others; it is also respect for one’s own dignity and essential humanity. Not to respect the dignity of others is also not to respect one’s own dignity.”14 It doesn’t end there. It’s expensive to keep alive a patient in PVS. Resources are limited. The patient’s continued existence (and all the other thriving interests dependent on it) are bought, to put it brutally, at the cost of the lives of the people who could be saved by reallocation of the resources. The thriving interests—the dignity interests—of those other patients (and the others in their nexus) are crucially engaged. It is important, as I have already observed, for the patient herself to have a good story. I have identified that as a dignity interest. One way of having a good end to the story of a PVS patient is by being altruistic. With Jonathan Herring I have argued that to behave altruistically is part of living well (and that, accordingly, altruistic behavior, even if it incurs some physical detriment, can be justified under the welfare/best interests test).15 If this is right, then it might be in the best interests of the PVS patient (because her dignity/thriving interests compelled that conclusion) for her to die and for her organs to be harvested in order to let others live. Everyone, in fact, has a dignity interest vested in this particular patient. The criminal law recognizes that society as a whole is damaged by, for instance, a murder. This is not merely or mainly because, if murder goes unpunished, murders will proliferate and the risk of each one of us being murdered rises. More important is what the fact of the unpunished murder says about the zeitgeist—about the ethical water in which we all have to swim. A society that tolerates murder is toxic, and the toxicity affects the ability of us all to thrive. As this is true for murder, so it is for less dramatic acts of unkindness. And, so, conversely, it is for acts of kindness too. Every action and every inaction by everyone has a consequence for everyone else. This isn’t mysticism: it’s sociology and the physiology of mirror and canonical neurons.16 The interests represented by property considerations are, obviously, in the mix too. But the approach I have articulated sees the roots of the concerns that are often manifested in declarations about proprietary interests—not just the topmost branches, which are all that the property lawyers purport to describe. It is therefore better able to address the concerns. There are, then, many and diverse dignity considerations in play when pondering how one should treat a PVS patient. Many if not all of those interests (for instance, the good story interest, with its altruistic component, and the interests of all the other stakeholders) will be engaged, too, in situations in which the patient has died. By way of summary and example, let us consider what it might mean to say that use of the human ear as an ashtray does not promote human thriving. There are at least five ways. I adopt them all. 1. Part of the ear-owner’s being survives death. She lives on in the minds of others, and for that part of her to continue to flourish, her remains need to be treated with respect.

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Dignity and the Ownership and Use of Body Parts 2. Her wishes (another part of her being) survive death. It’s reasonable to presume that one does not want one’s body parts abused. 3. The possibility of our body parts being so abused after our death interferes with our peace of mind, and, hence, with our flourishing. Thus to prohibit such abuse, by way of law or ethical code, is to promote our present and future flourishing. 4. The abusers are doing something that diminishes their own flourishing: it dehumanizes them. 5. Expressivism: a set of rules prohibiting this sort of abuse will exhibit and entrench flourishing-enhancing respect.17 Assuming, then, that a dignity model is the best way of identifying the interests that should be considered in bioethical decisionmaking, how, having identified the interests, does one take them into consideration? I address this question first on a very general level and then move on to the specific context of body parts. First, and generally, I suggest that the unit of bioethical decisionmaking should be the entire transaction. One should look at the proposed action or inaction and ask: “How would that affect the total amount of human dignity in the world?” It’s a sort of utilitarianism. This is very different from the way in which medical ethics has traditionally been conceived. Medical ethics has tended to focus narrowly on the relationship between patient and clinician, and to say that other relationships are irrelevant. This is because autonomy has been the main philosophical currency. Thus, although clinicians (according to professional regulatory codes and, for instance, the [English] Mental Capacity Act 2005) should listen to the views of the family of an incapacitous patient when deciding what is in the patient’s best interests, their views are simply evidence going to the general question of where the patient’s best interests lie. It is conventionally understood to be unlawful to take those views into account for any other purpose. The fact that a patient’s relatives would themselves be bitterly affected by a particular decision in relation to the patient is, in itself, irrelevant. Although Herring and I have argued that the existing bestinterests test is sufficiently elastic to encompass the effect of actions concerning the patient on others,18 there is no doubt that this result would be better achieved were clinicians’ duties to be understood as duties to the patient and the nexus in which the patient exists and of which she consists. Yes, this would have some tectonic effects in the law of tort, but the law should be sufficiently imaginative to prevent a potential duty to the whole world from becoming so onerous that no one would ever want to practice medicine. In order to determine how the net amount of dignity will change, one has to do an audit of the dignity interests of all the stakeholders. That is easy to say, but it sounds wholly impractical. I will contend subsequently that, even if this approach is impractical, it is the exercise mandated by the existing law. But how can it be done? Some sort of proximity criteria need to be applied. Although the patient’s interests should not trump all others, they should be given very high priority. The interests of close relatives should have less weight than those of the patient, but more than those of distant relatives. And so on. The weighting should not merely be a matter of the amount of shared DNA. If the death of a patient would release organs that would save X, then X’s interests

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Charles Foster will carry very great weight and might well outweigh those of a close blood relative who hasn’t seen the patient for years. The steps, then, are as follows. They have to be taken in strict order. The allocation of a particular stakeholder to a proximity category, for instance, cannot be done unless and until the relevant dignity interests have been identified and weighed. 1) Identify the stakeholders. 2) Identify their dignity interests. Although in an ideal world (and in many nonlitigious medical contexts) one should take into account many flourishing criteria, for practical purposes, only two can realistically be considered. These are the two already mentioned: physical integrity and relationality. Between them, they cover a good proportion of dignity’s territory. 3) Weigh those interests. Note that many of the weights will be negative. 4) Allocate the interests a proximity score. Imagine the model as a set of concentric circles. The center is the patient. Autonomy deserves that much acknowledgment. After that, though, no other stakeholder’s position is assured, although there will be a (fairly easily rebuttable) presumption that, for instance, close relatives are in an orbit closer to the center than visitors to the ward where the patient is lying. 5) Add up the weight of the interests in each orbit. 6) Discount the total weight of the interests in each orbit by a factor that will be greater the more distant from the center the orbit. 7) Add up the total score. 8) If the score is positive, the action/inaction is justified. If it is negative, it is not. From Ethics to Law Most of this has been airily ethical. Can it be translated into law? Not only can it be translated, but it has been translated. In fact it is the ruling legal orthodoxy. Often (and particularly in relation to the grand international codes of human rights that emerged immediately after, and as a result of, the Second World War19) “dignity” is used as a placeholder. Very few have clauses attempting a definition of dignity. Dignity has done its place-holding work well. Over the last 50 years a good deal of jurisprudence has become encrusted on the word “dignity.” Unlike many encrustations, this jurisprudence has made the outlines of the underlying idea clearer. Nowhere is this more true than in the jurisprudence surrounding Article 8 of the European Convention on Human Rights. Article 8(1) provides that “(1) everyone has the right to respect for his private and family life, his home and his correspondence.” But this right is not absolute. An infringement may be justified (Article 8[2]) if it is “in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” It is now clear that Article 8 is the natural home of dignity.20 It is a rather tense home. The space is shared with autonomy, and there are sometimes silent, icy breakfasts and sometimes shouting matches. Also the landlords (the Strasbourg court) won’t leave the place alone. They are always redecorating and adding on extensions.

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Dignity and the Ownership and Use of Body Parts But there is no danger of dignity being ousted. Indeed, it now holds, with autonomy, a perpetual joint tenancy. It used to have a bare license, and autonomy kept it in a shabby spare room. Dignity is here to stay, and its main address is Article 8. Let’s change the metaphor. Article 8 is the most elastic of the Convention articles. It stretches to places of which the original draftsman never dreamt. There’s a case for saying that you really need nothing for law making except Article 2 and Article 8. Article 2 keeps you alive; Article 8 lets you do, within reason, what you want to do with your life. Article 8 has been expressly held to cover end-of-life decisionmaking, on the grounds that the end of life is part of life.21 There is every reason to suppose that the autonomy (and dignity) interests inherent in an advance decision made by a previously capacitous but now incapacitous patient would find their Strasbourgeois voice in Article 8. And if that’s so, then Article 8 should speak beyond the grave too, giving voice to the wishes of the dead. Where the law has to deal with body parts, whether of the living or the dead, there is no need to look outside Article 8 for the guiding principles. Indeed it is philosophically unsatisfactory to do so, because of the manifest failings of straightforward autonomy and property analyses; and it is legally unsatisfactory to do so, because (1) Article 8 certainly does apply to some questions to do with body parts (particularly those infused with questions of consent and confidentiality— and what body part question is not so infused?), and it is confusing not to have a single jurisprudential currency in any one particular domain, and (2) a properly conducted Article 8 analysis will take account of far more of the concerns that law says are close to its heart—including the protection of autonomy—than will any of the alternatives. Article 8, then, is or should be the ruling paradigm in body part cases. The [English] Human Tissue Act 2004 is only lawful insofar as it is compatible with Article 8. Strasbourg allows its cats to be skinned in many ways. And one might expect the margin of appreciation to be particularly wide when it comes to body parts, because the questions they involve may well be viewed through very different sociological and theological eyes in different jurisdictions. Hence my solution is unlikely to be found to be noncompliant with the Convention. The only real objection I have to meet is as to practicability. In particular I have to meet the objection that I am saying nothing more than that in deciding what to do about body parts, one should take absolutely everything into account; I must also address the related objection that this assertion imposes an absurdly onerous burden of inquiry on decision-makers. There are two strands to the answer. First, the core of the objection is accurate: I am saying that one must take everything into account. But consider the following: 1) That is precisely the demand that Article 8 makes. It requires the balancing of all the life interests of the individual (Article 8[1]) against the balancing of just about all the life interests of the rest of the world (Article 8[2]): there is not much of human life that isn’t covered by the 8(2) categories. Accordingly, the objectors are not disagreeing just with me; they are objecting to Article 8 itself. 2) Article 8 isn’t fazed by the job. The jurisprudence of Article 8 is not the jurisprudence of baffled despair.

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Charles Foster 3) If taking too much into account is a fault, knowingly not taking material considerations into account (as autonomy and property do) is worse. 4) The law of tort is very familiar with the examination of the weight of the claims of different categories of potential claimant. It generally does it with a view to deciding whether a particular claimant or class of claimant is within or without the category that is entitled to claim. Thus, for instance, in deciding whether or not a duty of care exists, and on the not-neatly-separable criteria of proximity and foreseeability in the law of causation, the law lays great stress on the importance of an identifiable class of victims. If you’re identifiable, you’re in. If you’re not, you’re out. But there is no reason in principle why the lenses used by the courts to examine the contentions of fairly remote classes of potential claimants could not be used for the more nuanced job of weighing their claims. 5) There is no reason why rebuttable presumptions about the weight of the claims of particular classes of claimant could not be built into a scheme— perhaps along the lines of the statutory hierarchy of consent givers under the Human Tissue Act 2004. Thus, for instance, the scheme might provide that someone waiting for an organ is in the orbit immediately below the immediate family of the potential donor. 6) In order to ensure that all the relevant contentions were taken into account, there would, in practice, have to be a system of bidding. The scale of the enterprise would mean that the initial processing of the bids would have to be computerized and subjected to a Bayesian analysis, using statutorily agreed-on presumptions about the orbit in which each bid should go. 7) Six agencies should be created, representing the main categories of interest reflected in Article 8: patients, families, potential organ recipients, researchers, public health officials, and religious and other ethical watchdogs. 8) Only the first two of these (the patient agency and the family agency) would make representations tailored to a specific case. The remainder would make, in an individual case, a representation pulled from the file pertaining to that class of dispute. So if there were a dispute about what should be done with the heart of a PVS patient, the patient and the family would comment specifically about that patient; the other agencies would make the same representation for that PVS heart case as they would for any other comparable PVS heart case. It would be reasonable to assume that every patient waiting for a heart transplant would be desperate to have that particular heart: there would be no need, usually, to know much about the details of the patient. Apart from the patient and family agencies, the agencies would principally be research agencies—canvassers and assimilators of the views of their stakeholder constituencies. They would no doubt have to adopt an orbital, Bayesian approach to determining the output they generated. The religious/ ethical agency, for instance, would be charged with coming up with a score that represented the consensus of their stakeholders, corrected for the numbers of stakeholders holding a particular position, the strength with which that conviction was held, and so on. If the family concerned came from one of the stakeholder groups, that would mean that generic religious/ethical data would not apply. 9) Each agency would produce, very simply, a score. The computer could not cope with comments. The consideration of the comments would happen at

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Dignity and the Ownership and Use of Body Parts the individual agency level. The scale would go from minus 10 to plus 10: minus 10 would be a very strong “no,” 0 would be neutral, and plus 10 would be a very strong “yes.” 10) Each agency would then submit its score. Of course, there would need to be very careful consideration of the orbit to which each score was allocated. The orbit allocation, and the weight given to each stakeholder within the orbit, would also take account of the number of likely stakeholders. 11) A score would be generated. 12) It would be subject, under some conditions, to review by at least some of the agencies—not the individual stakeholders. All this is easier said than done, of course, but in principle the model is no more difficult to apply than other Bayesian models for the weighing of competing interests. And even if the methodology can be attacked, it at least has a transparency that is lacking in many other systems that seek to adjudicate agonizing claims. Attacks on the methodology (for instance, as being naïvely Benthamite) have to deal with the fact that Article 8 requires a procedure like this one. Conclusion Existing ways of looking at the legitimate possession and use of body parts are inadequate. I propose a dignity-based model, based on the characteristics that we know generate human thriving, which is less inadequate. I then propose a way in which this model might be used in practice. 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. 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;17:230–8, 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.

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9.

10. 11.

12. 13. 14. 15.

16.

Dignity: Not such a useless concept. Journal of Medical Ethics 2010;36:160–4. 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). 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). “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). Our circumstances, too, become part of us, and to make the most of them is to maximize our selfhumanizing 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. Cited by Baroness Hale in Hale B. Dignity. Journal of Social Welfare and Family Law 2009;31(2):101–8. Dworkin R. Is Democracy Possible Here? Princeton and Oxford: Princeton University Press; 2006, at 16–17, cited in Hale 2009 (see note 12). See note 12, Hale 2009, at 106. Herring J, Foster C. Welfare means relationality, virtue and altruism. Legal Studies 2012;32(3):480–98. I am with Aristotle as against Plato, however, in believing that virtue is a necessary but not a sufficient condition of human thriving. 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.

17. 18. 19. 20. 21.

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Keysers C. The Empathic Brain. Amsterdam: Social Brain Press; 2011, at 61–3. This list is taken from Foster 2012 (see note 1). See note 15, Herring, Foster 2012. See, e.g., the Universal Declaration of Human Rights. See Pretty v. UK (2002) 35 EHRR 408. Pretty v. UK, supra: R(Purdy) v. DPP [2009] UKHL 45.