Organs
Four transplant patients in Chicago have contracted HIV from the organ donor. It is alleged to be the first case of such transmission in the U.S. in 13 years.
Initial tests on the donor for HIV, hepatitis and other conditions came back negative, most likely because the donor had acquired the infections in the last three weeks before death. Personal details about the donor were not released [to the recipients or their doctors] by medical official [sic] officials, who cited privacy laws.
Emphasis added.
The screening process has, granted, been (apparently) successful in preventing tissue transplant transmission of HIV for 13 years. And for a long time, available tests for HIV had a significant window period, during which HIV is present, but undetectable by the test. Antibody tests generally have a three week window period. That means that, if a donor donates organs within three weeks of initial infection, an antibody test will not detect the virus. New tests, which directly test for the presence of viruses or virus fragments, commonly called PCR tests (after the method, polymerase chain reaction), but more accurately termed NATs (nucleic acid tests), have a window period of less than two weeks. This is the test used for screening donated blood. These are more time-consuming, labor-intensive, and expensive tests than antibody tests, so blood banks pool samples from multiple donors and test the pool. A positive result will either invalidate all the donors in the pool, or lead to further, individual testing of the donated blood, depending on need.
Clearly, this is not the method that was used in this case. The article indicates a window period of 3 weeks, suggesting an antibody test. That in itself is suspect. But my point, to which I am coming shortly, is not to criticize the organ screening methods. I am not suggesting that the government step in with stricter standards requiring (or paying for, with stolen tax dollars) more advanced tests. That won’t help anyone.
Observe what horrors arise when the government bans the voluntary sale of organ tissue.
These patients were prohibited from knowing the identity, lifestyle, or medical history of the donor. They were not presented with the evidence. They were not permitted to weigh the relevant risks. Because of Federal “privacy laws.” Nor did they have the opportunity to purchase organs from a more transparent source. In fact, tissue recipients are not permitted to “shop” for the best quality organ. No choosing what organ to accept based on what HIV test was used. No choosing what organ to take based on the lifestyle or manner of death of the donor. No opportunity to weigh the risks against the benefits and make an informed decision. And certainly no opportunity to pay more for a better organ. It might be true that, as the article suggests, the screening system cannot be made perfect. But there is no excuse for hiding any potentially relevant information from the patient, including screening methods and personal information about the donor.
The donor system amounts to blackmail. Transplant patients are presented with an empty choice: Either play Russian Roulette with the donor system, or die.
Great post, Qwertz! I have a legal-ish question for you: does a person’s right to privacy continue after he dies? Seems like a person would need to be alive to have any kind of rights, but maybe there are considerations for the heirs of the estate.
The rationale of protecting the donor’s “right to privacy” got me wondering.
You raise an interesting problem that I have been debating with a Real Person for a few weeks now: Specifically in the context of wills and the right to property “after” death. It is my general position that thoroughly dead people have no rights, and so a person would have no particular right to privacy after death. You can see the problem this might create with the disposition of the property of the deceased. The Objectivist proposition that all individual rights are derivative of the right to life suggests (at least, as I understand it) that without life, no rights exist.
Also, the Supreme Court recognizes a “right to privacy,” but I don’t necessarily agree that such a right exists. It certainly isn’t the fundamental right the Court thinks it is. If a right to privacy exists, it is derivative of the right to decide the course of one’s life. Like the right of liberty.
There should be no right to keep true secrets. The truth is the truth; it doesn’t violate someone else’s rights to speak the truth, no matter how damaging. This is why truth is an absolute defense to defamation. Many states, however, have chosen to recognize a “right to keep true secrets” about certain “private” things (“private” is usually hazily defined in reference to the famous but ultimately unilluminating “sweet mystery of life” paragraph in Planned Parenthood v. Casey) in the form of “invasion of privacy” torts. Obviously I take issue.
Another possibility, and I have to look up where I read Rand saying something like this, is that after-death rights are “extended as a courtesy” to the dead person. I didn’t like the context in which (I have been told) Rand said this, and I don’t think it applies as a general proposition. I’ll have to research that bit, though.
But as a legal matter, I do not believe any real determination has ever been made by any court as to whether any “right to privacy” recognized at law survives after death. The only situation I know of where the rights of the deceased have been assumed to extend after death is in the case of wills, which are themselves a major category of exception from many areas of law, including property (dead people cannot hold property, but wills convey property to the fictitious-person “estate” after death) and contracts (contracts to make a gift are not enforceable, but wills are).
It’s becoming more and more clear to me that our rights, as recognized by the modern law, are really more hobbled together into something that “works” instead of being organized around fundamental principles.
~Q
Two addenda:
1) I didn’t mean to suggest that people on the Internets are not “real.” Of course you are all real. No offense intended.
2) Here’s that “sweet mystery of life” passage from Casey:
~Q
I’m not too familiar with the issues surrounding government regulation of organ donations. Are there any secular reasons for having government-regulated blind organ donations? I’m interested in reasons that have nothing to do with religious or mystical perceptions of man’s “dignity” and “sanctity.”