Allocating a Future: Ethics and Organ

Transplantation
by Heidi Williams
a paper prepared for "Ethics in the Health Care Professions," an undergraduate class in the Religious Studies
Department of Santa Clara University
In February 2003, 17-year-old Jesica Santillan received a heart-lung transplant at Duke University Hospital
that went badly awry because, by mistake, doctors used donor organs from a patient with a different blood
type. The botched operation and subsequent unsuccessful retransplant opened a discussion in the media, in
internet chat rooms, and in ethicists' circles regarding how we, in the United States, allocate the scarce
commodity of organs for transplant. How do we go about allocating a future for people who will die without a
transplant? How do we go about denying it? When so many are waiting for their shot at a life worth living, is
it fair to grant multiple organs or multiple transplants to a person whose chance for survival is slim to none?
And though we, as compassionate human beings, want to help everyone, how far should our benevolence
extend beyond our borders? Are we responsible for seeing that the needy who come to America for help
receive their chance, or are we morally responsible to our own citizens only?
Rationing scarce resources presents an ethical challenge. I believe that since available organs are so scarce,
it is imperative that the utility of donated organs be maximized. In this paper, I suggest that organ allocation
be rooted in distributive justice, which demands that equals be treated equally and unequals be treated
unequally. I will explore this formal principle and the substantive criteria of equality, need and efficacy
(maximum survivability) as they relate to the just allocation of organs for transplant. I will apply these
principles of justice to Jsica's case to show that while her first transplant was warranted, her second was
not. And, finally, I will conclude that Jsica Santilln's case should serve as an example of what's wrong with
our current system of organ allocation.
First, let's address equality as it applies to justice. All other things being equal, who holds a claim to the
organs available for transplant in the United Statesjust citizens, or illegal immigrants, too? A recent
Chicago news source cited the tragedy of "American taxpayers and their children who died last year waiting
for the transplant that Duke University Hospital chose to give to a citizen of a foreign nation" (Bailey, 2).
This article went on to state that our system "rewards illegal aliens for entering the United States to access
our health care system, thus condemning some of the American taxpayers who pay for that system to
premature deaths. Few could deny the sheer unfairness of such a situation" (Bailey, 2). But how true are
these statements? Are organs allocated in a way that promotes inequality for American citizens? An ethicist's
first responsibility is to look at the facts, and the facts in this instance tell a different story.
According to the United Network for Organ Sharing (UNOS), American citizens are more likely to receive
organs of non-citizens than vice versa; "As a percentage, every year, U.S. citizens receive more organs than
they donate" (Vedantam, 2). Also, UNOS limits the number of transplants allotted to non-citizens to no more
than five percent of available organs; however, no limits on donations are made (Vedantam, 2). These facts
indicate that Americans are benefiting from the organ donations of non-citizens, receiving more than an
equal share.
Another question arises when we speak of justice regarding this issue: what does our society owe to illegal
immigrants in light of the benefits we receive from their participation in our economic and social life? In his
article, "Parties to the Social Contract? Justice and Health Care for Undocumented Immigrants," Kenneth
DeVille explains the idea of the social contract as "individuals [who] create civil societies by joining together
for their mutual benefit and protection" (306). According to DeVille, citizenship is not necessarily the best,
nor the only, method of determining who is party to this contract. He notes, "In many cases, immigrants are

socially, culturally and economically integrated members of our civil societyliv[ing] under the same laws as
citizenspay[ing] many of the same taxes" (307). He goes on to note the ambiguity of an American system
that halfheartedly enforces immigration and work laws while "benefiting from, and in some cases exploiting,
immigrant labor" (307). He makes the point that the social contract demands extending social goods to
members of society who participate significantly within that society. Our economy relies on the low cost
labor of illegal immigrants to keep produce prices down. We allow hordes of workers to do the backbreaking
jobs we disdain, turning a blind eye to aliens working in our fields. If we, as citizens, benefit from their
exploitation, we have a duty to honor our side of the social contract and allow them access to our services.
In my opinion, UNOS has acted fairly in safeguarding equality of organ allocation by taking into
consideration the moral mandate we have as human beings to care for one another. By allowing up to five
percent of the organs within its system to be allocated to non-citizens, they are identifying the common
bond between members of the worldwide community while respecting and carefully guarding the resources
of the American community.
Equal opportunity to tap into the system of organ allocation is just one component of distributive justice
surrounding organ allocation. As Ronald Munson points out inIntervention and Reflection, "we do not always
expect that being treated justly will work to our direct advantage" (37). But in a situation where resources
are scarce and not everyone who needs help will receive it, it is important that allocation be fair. In selecting
a system of allocation, it would be wise to choose one "that favored those most likely to benefit from a
transplant. Rational planners [behind the veil of ignorance], ignorant as to whether or not they will ever
need a transplant or retransplant, would increase their own chances of benefiting from a transplant by
setting up a system that, all else equal, distributed scarce organs to those most likely to gain long-term
survival from a transplant" (Ubel, et al, 270). Maximizing utility just makes sense, so we need to determine
which of the neediest candidates are most likely to have the highest success rate. The basic principle of
justice that dictates similar cases be treated similarly, conversely allows for different treatment when cases
are dissimilar. It is these dissimilarities that have the most effect on maximizing the utility (or the life) of a
donated organ. The first criterion to be looked at is need.
In Transplantation Ethics, Robert Veatch outlines an interesting way of assessing need. He calls it the "overa-lifetime perspective" (340). This approach takes into consideration a person's entire life when determining
who is worst off. A 17-year-old and an 80-year-old both dying of heart failure are equally bad off, but this
perspective allows that the person who has had 63 more years of life is better off, so the 17 year old is
neediest (Veatch, 341). Veatch writes, "from this over-a-lifetime perspective, justice requires that we target
organs for these younger persons who are so poorly off that they will not make it to old age without being
given special priority. The younger the age of the person, the higher the claim" (341). This methodology
furthers the goal of utilizing organs to their maximum potential.
Of course, it would be foolish to base allocation simply on the age of the neediest patients; efficacy, or
expected survivability, must also be considered. Presently, our system of allocation gives priority to those
who are the sickest or most in need of a transplant. But sometimes those who are the sickest and in the
most immediate need will not receive the same benefit from the transplant as someone whose medical
condition is currently more stable. Robert Veatch notes, "They may be so sick that they have a higher
chance of dying regardless of treatment" (295). I believe there is a moral obligation, due to the scarcity of
organs, to maximize the potential longevity of donated organs and place them where they are most likely to
do the most good (bring the most health) over the longest period of time.
This brings us to the question of retransplantation. Years of collecting data show that "retransplant recipients
at similar levels of urgency do significantly worse than primary transplant recipients, a difference that
increases with each successive transplant" (Ubel, et al, 272). Though I don't believe those who have already
received a transplant should be prohibited from receiving another, careful and objective consideration should

be given to these cases. Reasons for the organ failure and current condition of the patient must be
evaluated to determine if the retransplant candidate will maximize the utility of the organ. Preference in the
allocation of scarce organs should be given to the patient whose chances of long-term survival are best.
Now that we have a model for organ allocation based on the principles of distributive justice, we turn to
Jsica Santilln's case to determine if her transplants were warranted. Starting with her first transplant, let's
review the facts. Jsica and her family entered the United States illegally from Mexico several years ago.
Doctors in Mexico were not equipped to diagnose nor treat their daughter's rare heart condition of
cardiomyopathy which prevents the heart from pumping blood efficiently and eventually leads to death, so,
desperate to obtain medical help for their daughter, the Santillns paid $5,000 to be smuggled into the
country (Bailey, 1). Once in the United States, the family settled with relatives in a trailer near Duke
University Hospital and their story was publicized in a local newspaper. A wealthy businessman took up the
girl's plight, raising money for her medical care and lobbying successfully to get Jsica on Duke's transplant
list. Meanwhile, her father had found construction work and her mother was employed as a janitor at a
nearby college (Bailey, 1).
After being listed with UNOS in January 2002 for heart transplant, Jsica's condition deteriorated, and in May
2002 she was listed for heart/lung transplant (Fulkerson, 1). At 17 years old, Jsica weighed only eighty
pounds and was just five feet tall. Her small size made finding an organ match more difficult. When a
heart/lung block was offered to Duke's pediatric unit, the two potential recipients who had been identified by
UNOS were unsuitable. In a tragic communication breach, the organs from a type-A donor were awarded to
Jsica, whose type-O blood could only lead to acute organ rejection (Adler, 21). Five hours into the
transplant surgery, when the organs had already been exchanged, the mistake was discovered. Powerful
anti-rejection drugs were administered and UNOS was notified that Jsica was "in critical need of another
transplant" (Duke, 1).
Let's stop here and apply the substantive criteria of equality, need and efficacy of a distributive justice model
of allocation to Jessica's first transplant. Regarding equality, Jsica had a right to receive an organ transplant
based on the UNOS guidelines allowing up to five percent of non-citizens to receive organs. Beyond that, her
parents were also employed, contributing members of society-a party to the social contract. Jsica also
fulfilled the requirement of need-without a transplant, she would die, and using Veatch's "over-a-lifetime
perspective," she was a particularly deserving candidate-her youth gave her a higher claim. In the area of
efficacy, Jsica looked to be suitable as well. Her age and current condition gave physicians every indication
that the odds of her long-term survival were good. According to a distributive justice model, Jsica's first
transplant was warranted. Continuing with the facts, we turn to the second transplant.
As a result of organ failure following the first transplant, Jsica was placed on life support and within two
weeks a second set of organs was allotted to her. Before accepting the organs, doctors evaluated her brain
activity and surmised she had not suffered irreversible brain damage; therefore, a second transplant was
performed (Duke, 1). Though this heart/lung block was functioning well, the trauma of the first organ
rejection, paired with being on life support for nearly two weeks caused irreparable brain damage, and two
days after the retransplant "all brain function had ceased" (Adler, 24).
Applying the principles of distributive justice to the second transplant scenario presents a different outcome.
Though Jsica still deserved an equal opportunity based on her illegal immigrant status, she was no longer
equally entitled to a second set of organs because her odds of survival (and, thus, the odds of maximizing
the utility of the organs) were greatly diminished.
Her need was sufficient to push her to the top of the list (Kher and Cuadros, 1). Her young age again made
her an attractive candidate, but the expectation of her survival rate was now drastically changed, thereby

minimizing the efficacy of the procedure. Duke's staff determined the results of Jsica's brain scan the day
before the retransplant were inconclusive though they showed "some minor stroke damage and some
bleeding on the brain" (Kirkpatrick, 1). In their urgency to save Jsica's life, the doctors discounted the ill
effect of being on life support for nearly two weeks. Mark D. Fox, M.D., UNOS Ethics Committee Chairman,
said that determining whether or not someone is too ill to receive a transplant is problematic in medical
ethics because "the physician is always going to do what's best for the patient" (Kirkpatrick, 1). While that
action supports a goal of maximizing the patient's chance for survival, it does not guarantee maximizing the
utility of a scarce organ. If Jsica's condition before the first transplant had been the same as it was before
the second, she never would have been a candidate; therefore, her second transplant was unwarranted.
Maximizing utility calls for hard choices but upholds justice by "contribut[ing] to giving people opportunities
for equality of outcome" (Veatch, 295). The sad fact is that Jsica's second transplant deprived at least one
and perhaps three people from receiving organs they also needed to survive. In a desperate effort to
"control damage after its earlier transplant mistake" sound judgment was clouded and valuable organs were
wasted (Kirkpatrick, 1). In "Rationing Failure: The Ethical Lessons of the Retransplantation of Scarce Vital
Organs," the authors write,
Health care workers cannot always be expected to recognize when it is
time to forgo heroic lifesaving measures. Indeed, their traditional role
as patient advocates would seem to compel them to ignore the odds and
do whatever they can to help their patientsHowever, when such heroic
measures require scarce resources that could be better used to help others,
their good intentions can be unjust (272).
The tragedy of Jsica Santilln's death should be a call to physicians, transplant boards, and UNOS officials
to consider allocation criteria outside the Intensive Care Unit where emotions are likely to misguide decisionmaking. Doctors should not be made to feel they are abandoning their patients during their greatest hour of
need, but they should also not be allowed to drain the resource pool when the outcome is unlikely to be
good. UNOS should implement a strict policy of organ allocation based on equality, need, and efficacy.
Obviously, I've placed myself behind the "veil of ignorance" in order to reach this proposal. If it were my
daughter, my husband, my sister, or my friend who needed the transplant, I would be all for solely using the
principle of need to determine allocation. But that's precisely the point: we must have a policy in place that
moves decision-making from the more visceral, gut-feeling approach to a rational decision based on
projected outcome that is more appropriate for maximizing the utility of our scarce resources.
Heartbreaking, yes, but just.