The Survival of the Survival Lottery

Journal ofApplied Philosophy, Vol. 13, No. 1, 1996

DISCUSSION ARTICLE

The Survival of the Survival Lottery

C. J. McKNIGHT

ABSTRACT In his paper ‘The Survival Lottery’ John Hams suggested that there could be situations where the rational thing to do would be to kill a healthy person and harvest his organs for transplantation, thereby saving several lives at the cost of one. Anne Maclean claims that such a proposal, far fiom being rational, does not qua&& as a moral proposal at all since what it suggests is ‘plain murder’. I argue that she is correct to claim that the proposal is not uniquely rational and that doctors could quite rationally reject it, but that she overreaches herself when she holds it not to be a moral proposal at all.

In her book ‘The Elimination of Morality’ [l], Anne Maclean attacks the position advocated by John Harris in his famous paper ‘The Survival Lottery’.[2] In that paper Hams considers a situation where some doctors have on their books two or more patients who are almost certain to die unless they get immediate organ transplants and there are no spare organs of the appropriate kind available in any accessible organ bank. A possible course of action which the doctors might consider, claims Harris, is that a person known to have healthy organs should be seized, killed painlessly and have his organs taken for transplantation into the other patients, thereby saving two or more lives. Once they consider this option their belief that life is valuable and that more lives are more valuable than fewer lives will convince them that this is the right course of action since it maximises the number of lives saved albeit at the cost of the life of a healthy and quite innocent person. They will realise that this is the rational and morally correct thing to do and to act otherwise would be both irrational and immoral. They will realise too that once word gets out that such practices are taking place there will be Consternation and fear among the population in general that they themselves might be the next victim. In order to allay this the doctors propose a kind of lottery where everyone is issued with the equivalent of a lottery number. A lottery is held every time organs are needed and the person with the ‘winning’ number gets the ‘prize’ of becoming the supplier of the required organs. This, they believe, will allay the fear to a considerable extent since people will realise that the selection is being done on a perfectly fair basis and their chances of ‘winning’ are anyway very small indeed.

Whether or not the doctors are right in their predictions does not much matter since, as Maclean points out, the lottery, despite the fact that it features in the title of Harris’ paper, is not the main issue. The main issue is whether Harris is right to say that in these circumstances the only right or rationally justifiable action is to kill the person and harvest his organs. Maclean believes that he is not.

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Maclean summarises Hams’ argument like dus: @. 102)

1. It is not smctly true that no suitable organs are available for Y and Z; there are any number of individuals walking around who have hearts and lungs suitable for them both. If one of them (A for example) is killed the transplants can go ahead, with the probable consequence that the lives of Y and Z will be saved. So the doctors can save Y and Z.

2. Given that t h i s is the case, if the doctors refuse to kill A they will be LETTING Y and Z DIE.

3 . Since the distinction between killing and letting die is of no moral significance, if the doctors refuse to kill A they will be (as good as) KILLING Y and Z.

4. They will emerge therefore, as people who, when faced with a choice between killing one person to save two and killing two persons to save one, chose to do the latter when rationality plainly required them to do the former.

The most vulnerable part of the argument seems to be step 3 which equates letting die with killing. Though Maclean does not accept the equation and argues against it elsewhere in the book, while here referring to it as a piece of ‘consequentialist dogma’, she thinks the argument goes wrong at an earlier stage. Step 1 is, she thinks, already open to question since it assumes that suitable organs ARE available and t h i s in turn presupposes that the killing of A is an available means of saving the lives of Y and Z. But the doctors could intelligibly and rationally, she believes, hold that this option is simply not available. ‘We can’t do that’, they could say. ‘The lives of Y and Z can’t be saved’. ’ h s impossibility is not physical impossibility and the unavailability of the option of killing A is not physical unavailability (we may suppose that A is in the doctors’ power and the means of killing him are physically to hand). Nonetheless the option of M h g A is morally unavailable. Doctors cannot (morally cannot) kill an innocent person even in order to save several lives. To assume that the option is available morally is already to beg the question in favour of the maximising view of morality favoured by Hams whereby the moral value of an action is a function of its contribution to maximising the amount of good in the world. Once the availability of the killing option is granted it becomes that much easier for Hams to argue that it is better than the other available options. But the a h s s i o n of its availability itself begs the question.

Where does this leave us? We seem to have a stand-off. Harris has not succeeded in showing that his answer is the only right answer or the only rationally defensible one. The doctors can argue equally defensibly and with equal rationality that Harris’ recommended option is simply unavailable. It has not been shown that Harris’ answer is not morally and rationally defensible, only that it is not uniquely so. Hams’ claim to rationality has not been undermined, only his claim to superior rationality.

It looks at first sight as though Maclean agrees with this. She writes (p. 105): ‘We have seen that there is, so far, no reason at all to accept the account of the conflict Harris himself tries to give - that it is a confict between rationality and irrationality (he is thlnking rationally, the doctors are not) . . . There is in Harris’ paper no argument for the irrationality of the doctors’ behaviour which begins from a place outside the maximiser’s own point of view’ . . . Were this discussion to follow the pattern of previous discussions the answer would be that it should be described simply as a moral conflict or disagreement . . . Is that what we would say?’

It soon becomes apparent that Maclean does not think that this is what we should say but rather that she thinks the disagreement between Hams and the doctors is of a quite different order from the ones she has discussed previously. Before we can decide about this we need to

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look at those other conflicts. I shall describe just one, since it is the one on which Maclean herself spends most time.

‘Suppose’, says Maclean, (p. 82) ‘that a group of terrorists invade and seize a foreign embassy with the intention of killing one of its occupants (the ambassador) who manages to hide himself so successfully that he cannot be found. The only person the terrorists are able to capture is a visitor to the embassy, a tradesman who is wholly unconnected with the regime the terrorists are fighting but who happens to know the ambassador’s whereabouts. The terrorists take this man hostage and threaten to kill him unless he tells them where the ambassador is. He replies that he cannot tell them, because it would be shameful for him to buy his life with the life of another human being.’

To make the example into one of maximising lives it is then changed so that there are three hostages instead of the original one, but otherwise the details remain the same. All three hostages say that they cannot reveal the ambassador’s whereabouts because it would be shameful to do so. Harris and friends say this is an irrational decision since it results in the loss of three lives instead of one and the hostages reply that the other course of action is simply not open to them. Maclean summarises: ‘there is no doubt that a supporter of the maximising policy would continue to urge against this that the hostages’ decision would be an irrational one. It is clear however that if he does he must meet. . . the challenge of DEMONSTRATING the irrationality of which he speaks. Once again there is nothing to prevent a maximiser from expressing his own moral opinions in a forceful way; he is perfectly at liberty to say that the hostages’ view ‘makes no sense’ to him. But so far this IS nothing but the forceful expression of his own point of view. If he is to make it something more. . . he must show that the hostages’ stance is irrational by some standard they themselves accept, or to which they are committed.’ @. 84).

What Harris and the maximisers describe as a conflict between reason and unreason turns out to be a conflict between different views of what constitutes a moral reason and such disagreements are moral disagreements. The maximisers have a rationally defensible stance, but so too do the hostages. They have differing moral viewpoints and we have been unable to find any neutral criterion of morality or of rationality in the light of which we can compare them and find one superior or inferior to the other.

But the dispute between the lottery maximisers and the doctors is, in Maclean’s view of quite a different order. To anticipate; whereas the proposal made by the maximisers to the hostages that they reveal the ambassador’s whereabouts makes ‘moral sense’ (as likewise does the hostages’ refusal), the lottery proposal makes no moral sense at all but is simply absurd. As such it cannot claim to be a moral proposal at all. Since moral disagreements must be between views both of which are moral views the disagreement between the doctors and the lottery enthusiasts is not a moral disagreement since one of the positions is not a moral position at all.

Maclean’s attack on Harris is thus part of her overall strategy of arguing that maximising accounts and the utilitarianism which underpins them not only fail to offer a more rational account of morality than others, they actually fail to offer an account of morality at all but result rather in its elimination.

Why then is the lottery maximisers’ proposal that A be killed not a moral proposal at all? Because, says Maclean, killing A would be plainly and indisputably murder and the suggestion that murder might sometimes be permissible makes no moral sense whatever. Harris offers two ways in which we might dispute whether this is a clear case of murder; there is he says no malice towards A on the part of those who kill him and the killing is an act

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of self-defence by Y and Z. Neither, Maclean thinks, succeeds; it may be true that there is no malice here but that is not enough to defeat a charge of murder. It is difficult too to see how killing A can be self-defence when A is not attaclung anyone. Maclean is right about this, I think, and we need to face head on the question of whether, granted that killing A is murder, it could nevertheless be morally justified.

Before doing so, I want to dispose of one small issue. One difference, Maclean says, between the lottery case and her other examples, including the ambassador and the hostages, where innocent people get killed is that the other cases are all ‘disaster cases’ and involve highly unusual situations (p. 101 ) whereas the shortage of organs in the lottery case is a relatively common occurrence. It is difficult to see how the moral justifiability or otherwise of a course of action can depend on the frequency with which the envisaged situation is likely to occur. It does not take much imagination to conceive of a world where the situation where the lottery is held was a highly unusual one. The technology of artificial organs and the use of animal organs has, let us imagine, improved vastly and a relaxation of the restrictions on organ donation has led to an increase in the number of donated organs. Most of the time there are plenty of available organs. Once in a blue moon we run out and have to invoke the lottery procedure, but only once in a blue moon. If the lottery involves ‘plain murder’ in the actual world, it is difficult to see how it would not also involve it in the (not very remote) possible world just described.

But Maclean’s argument does not need that unpersuasive detail. Her claim is simply that it makes no sense for Hams or anyone else to deny that the lottery results in plain murder. Let us notice that we seem here to have a new concept of not making sense. Previously we have been told that something can make sense morally to one person but not to another. We are told of a woman who feels she has an obligation to look after her mother even though she was neglected by her as a child whereas her husband says t h ~ s makes no sense to him (p. 49). Th~s disagreement is a moral one. Now however we are being told that the denial that killing A is murder does not make sense simpliciter. It does not make sense to anyone at any time. W h y not? Because, it appears, while denying that the woman has an obligation to look after her mother involves no conceptual mistake, denying that the lottery killing is murder does just that. It makes no sense because it involves a misuse of our concept of murder. That concept allows that sometimes we can fmd reasons for saying that an act which might seem to be murder is not actually such but not any old reason will do. The reasons must be appropriate reasons. And the point about the lottery case is that there no such reasons exist.

Maclean offers Hams a strategy for avoiding the unwelcome outcome that his conclusion in ‘The Survival Lottery’ is senseless. What he does is to concede that given our present concept of murder what Maclean says is indeed correct; to deny that A’s killing was murder would be to make a conceptual mistake. But what he is really doing in that paper is advocating a new and improved concept of murder according to which such a denial would make sense and would not embody conceptual confusion. The obvious retort is to ask why the new concept is superior and why we should adopt it in preference to our current one which so far we have been given no reason to suspect of being inadequate. Hams is represented as parrying this challenge by saying that his new concept fits better with our notions about the value of life than does our present one. This leads Maclean into an analysis of how Harris’ and the bioethicists’ ideas about the value of life conflict with hers and as she believes ours. Here for the moment at least we need not follow her.

We need not do so because it is by no means obvious that the strategy recommended to Hams is the only or even the best available to him. Here are two alternative strategies. The

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first is to deny that Maclean has in fact given a correct account of our present concept. She is right, he might say, to say that killing A looks like murder and also that a charge of murder cannot be defeated by any old reasons but only by appropriate ones. But what he will say is that in this case there are very good reasons, namely that the lives of Y and Z will be saved. What is describable as murder is with equal appropriateness describable as the saving of 2 lives. If Maclean denies that this is an appropriate reason why should their disagreement be represented as being about the concept of murder whereas the earlier one between husband and wife about the appropriateness of the fact that Sarah was the wife’s mother as a reason for looking after her was not taken to be a conceptual disagreement about the concept of obligation to one’s parents? The line between conceptual disagreements and others, Harris might say, is notoriously difficult to draw and it is by no means clear that, on our current concept of murder, we have to draw it where Maclean does.

The second strategy would be to agree with everything said by Maclean about the killing of A being plain murder but to insist that this does not settle the question of whether or not such killing might sometimes be justified. ‘I agree’, Hams could say, ‘with everything which Maclean says about murder and about this course of action being murder. I agree too that the considerations which might defeat a charge of murder such as self-defence are absent here. What we disagree about is whether murder is ever morally permissible or justifiable. Maclean thinks it never is; I think it can be, in cases like this where murder is a means to saving a number of lives. Does Maclean think that this position makes no sense and embodies a conceptual confusion? If so, which concept am I confused about? Murder? But I agree with Maclean that killing A falls under that concept. Or is it the concept of moral permissibility? We do indeed disagree about the occasional permissibility of murder but why should this disagreement be classified as conceptual and why is it I who am guilty of conceptual confusion?’

It is not clear how Maclean would respond to this. She shows on p. 116 that she is aware of both strategies but instead of responding to them she proceeds directly to a discussion of the strategy mentioned earlier of presenting a new concept of murder. But in order for her argument to succeed she needs to respond to all the replies which Harris could reasonably make. Unless she does so her argument will be at best incomplete.

In this connection it is interesting to consider the way in which someone might try to argue with the hostages that they were wrong not to reveal the ambassador’s whereabouts. Maclean mentions several facts he might invoke; the hostages are innocent bystanders, the regime is an oppressive one and the ambassador is guilty by association with it, the ambassador is a complete stranger to them etc. She writes ‘there is no guarantee, of course, that the hostages will be prepared to accept this; they may continue to think that surrendering the ambassador would be a shameful thng to do whatever the newcomer says.’ Interestingly she does not suggest that the newcomer should agree with the hostages that surrendering the ambassador would be shameful but argue that nevertheless some shameful actions are permissible or justifiable and this is one of them. This would be the analogue of the second response offered to Harris in the lottery example. Why does Maclean not consider it? Is it because she thinks that ‘shameful actions are sometimes permissible’ makes no moral sense and manifests conceptual confusion? This is even less obvious than it was in the ‘murder is sometimes permissible’ example. ‘We cannot question’, she says (p. 107)) ‘the intelligibility of the denial that it would be shameful for the hostages to reveal the fugitive ambassador’s whereabouts’. Yes, but what about the intelligibility of the denial that shameful acts are always impermissible?

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But Maclean has a further objection to the proposal that A be killed. This is that to do so would be to fail to value A as a person since he is being used merely as a means to the survival of Y and Z; he is being used, that is, as a walking organ bank. ‘One cannot- LOGICALLY-cannot-’, she writes, ‘value as a person someone whom one is prepared to treat as notlung but a bundle of organs’ (p. 115). Valuing human beings, she thinks, as persons is different from valuing lives and this is something which Hams and his fellow bioethicists fail to recognise. They are accused of operating a metaphysical notion of value whereon lives are rated as more or less valuable on some supposedly objective scale of values independently of who values them if anyone. Thus a life which is not or is no longer valued by its possessor remains a valuable life so long as the owner remains capable of so valuing it. Maclean protests quite reasonably that this is difficult to make sense of. One can ask what value a life has to its owner, what value others put on it but not what value it has absolutely.

What is not clear is why bioethicists need this conception of value and how it ties in with the contrast between valuing lives and valuing people. Hams could perfectly well accept that the value of a life is a function of the degree to which that life is valued by its owner and by others and insist that it is this value which should determine our decisions about preserving lives and ending them. Thls might entail a revision of some of his judgements about which lives should be preserved, but would not as far as I can see involve a radical change in h s position. Nor does it say anydung about the alleged distinction between valuing lives and valuing human beings. What is the distinction and why does it matter?

Maclean mes to bring out the Merence by contrasting valuing something as a person and valuing it as an item such as a vase. When we value vases some will no doubt be more valuable than others and there will be features of the vases which constitute reasons why some are more valuable than others. What is more, in valuation of this sort, numbers matter. More vases will be more valuable than fewer, given that they are of the same quality. If, for some reasons vases must be smashed it is better that one should be smashed than two. The way in which we value vases is the same as the way in which Harris values lives. There are features of lives which make some more valuable than others and in situations such as the lottery where some lives have to be lost it is better that they should be as few as possible.

The valuing of persons, Maclean insists, is quite another thing. Rather than there being a scale against which people are valued, there is a sense in which all people are of equal value. Neither need there be any fact about a person or feature of a person which gives a reason for valuing that person. The question ‘why are people valuable?’ is one which should be rejected rather than answered. Again, it is by no means obvious that in this sort of valuation numbers matter, i.e. that several people are more or less valuable than one. Valuing someone as a person does entail that there are limits to how that person can (morally) possibly be treated; we cannot, as we have seen, kill them against their will as was proposed for A in the lottery.

Equally, valuing a person may sometimes actually involve ending that person’s life, where e.g. he has earnestly requested that and is in his right mind. In such circumstances lulling someone is not a denial of his value it is on the contrary an expression of it and of respect for him as a person.

There is nothmg irrational, Maclean thinks, about valuing people in this way; to ask what makes such valuing rational, what reasons there are for valuing people is to ask for reasons beyond the point where any may be had. Bioethicists have not shown that there is

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anything confused about such thinking or that their conception of the value of life is any more rational than alternative conceptions.

So far, one might think, so good. The bioethicists’ claim to superior rationality has been undermined. When they say things like ‘the life of a foetus is valueless’ or ‘the lives of senile patients lack value’ they are expressing their own moral attitudes and disagreements between them and people with different attitudes will be straightforward moral disagree- ments. The trouble is that once again Maclean is aiming for a more radical conclusion; namely that, far from the bioethicists having a position which is more rational than that of their confused opponents their position is in fact less rational since it is they who are conceptually confused, because their notion of valuing people fails to be a moral notion at all since it ‘makes no moral sense’. She writes ‘we cannot explain what it is to value people in the moral context except by referxing to THE UNTHINKABILITY OF DOING CERTAIN THINGS T O THEM - for example, the things that Y and Z are proposing to do to A . . . Bioethicists think they can appeal to the value of an individual person (or of his life) as a justification for GETTING RID of certain moral limits to the way in which individual people may be treated; but insofar as it makes sense to speak of the value of the individual person (in the moral context) IT IS A WAY OF TALKING ABOUT THESE VERY LIMITS’ @. 135).

But the radical conclusion - that the bioethicist position makes no sense - has not been proved. We have been told about two different conceptions of the value of lives; the maximising one of the bioethicists and the non-maximising one of the rest of us. But why does only the latter count as a moral conception while the maximising one turns out not to be a moral conception at all? What is the justification for the claim that moral value consists of limits to the way in which someone can be treated rather than the removal of those limits? The value of a vase is not indeed moral value so equally the value of a life may not be moral value. But the utilitarian moral theory which underlies bioethics holds that moral value consists precisely in the maximisation of non-moral value. How has that claim been shown not to make moral sense?

C. J. McKnight, Depament of Philosophy, The Queen’s University of Belfast, Belfast, UK.

NOTES [I] ANNE MACLEAN (1993), TheElimination ojMordity, London, Routledge. [2] JOHN HARRIS, (1975), The SurvivdLorrery, Philosophy 50.

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