February, 1980 I/6


Sometime in March, 1980, a bill intended to increase the supply of corneal tissue available for transplants will be debated in the Senate of the State The bill (SE 577) allows "a coroner, or coroner's physician, to remove eye tissue of a decedent upon request of an eye bank....in any case in which a patient needs a transplant of corneal tissue," provided:

1. "that the decedent having suitable eye tissue for transplant is under his jurisdiction;

2. no contrary indication as to the disposition of the eye was given by the decedent or his declared next of kin;

3. removal of the eye will not interfere with the course of an investigation or autopsy."

The bill also states that "neither the coroner, the coroner's physician, nor the eye bank receiving the corneal tissue may be held liable in any civil or criminal action for failure to obtain consent of the next of kin before removing corneal tissue for transplant purposes."

There are two issues involved in this bill; one political, the other ethical. The political issues might be stated in this way: What is the most effective way to obtain corneal tissue from the deceased: through a voluntary effort which persuades people to will their eyes or other organs for the use of others, or through a legislative effort which allows the tissue to be taken from a decedent provided no opposition has been expressed by the person when alive or by a next of kin after death? Until now, it was thought that the voluntary effort was sufficient and for this reason the Anatomical Gift Act has been recognized in all fifty states. (1) Insofar as the political question is concerned, before passing a bill of this nature there should be definite evidence that there is a shortage of corneal tissue for transplant.

If the need for the new bill is affirmed from the political point of view, then the ethical question must be answered. It might be phrased in this manner: Do the remains of a human person deserve any special respect which would preclude legislation of this nature?

Though the remains of the human body may resemble the body of a living person and though this resemblance may be prolonged through embalming, the remains are not a human body but rather a mass of matter decomposing into constitutive, organic elements. If the corpse is not a human body, then why be concerned about the respect or reverence it receives? Respect and reverence are due the remains of a human person because of the sacredness of the human life which once informed the now decomposing mass. Respect for a dead body signifies respect for human life, respect for the person who now exists in another modality, respect for the author of life, and respect for the people who are relatives of the deceased.

Hence, respect for the remains of the deceased person has meaning beyond its apparent signification. The practice of respecting the remains of a human person is a cross-cultural phenomenon, being found in the most ancient and primitive civilization as well as in the more modern civilization. Practices of this nature seem to fulfill the human need to demonstrate love as well as grief.

In order to show due respect for the remains of a human person then, no organs should be removed from the corpse unless there is sufficient reason for doing so. Certainly, to help a living person benefit from the remains of a deceased person is a noble and sufficient reason to allow an organ or other tissue to be removed from the corpse.2 From an ethical point of view, then, willing one's organs "to science" or for the benefit of some unknown person is considered to be an ethical action. But because the remains of a person in some way signify the person, if a person before death states, for religious or other reasons, that he opposes having his organs transplanted, this wish should be observed. In like manner, because the next of kin are thought to reflect accurately the wishes of the deceased, their desire should be followed too.

What should be done, however, if the person while alive expressed neither a desire to have his organs transplanted nor a desire contrary to this procedure? Does the state have the right to say that in this case people may act as if approval is present on the part of the deceased? It seems reasonable to say that the person who died without making a statement in regard to transplantation could be presumed to agree with a procedure which benefits another human being. Presumptions of this nature by which we interpret the mind of another are made frequently (e.g., in the case of unconscious or comatose people). Thus, it is ethical to presume what a person might wish to have done provided there are valid grounds for the presumption. Presuming that a deceased person would not object if organs or tissue from his remains would benefit another person is reasonable and just, even though the donation actually was not made.

The same presumption could be made ethically in regard to the next of kin, provided they are unavailable for consultation. Though the next of kin do not "own" the remains of the deceased, respect for the decedent requires that, if possible, they should be consulted and their wishes followed. This responsibility on the part of the coroner to consult the next of kin is implied in the bill, but it should be stated explicitly. With this addition, it seems that Bill SE 577 would fulfill the pertinent ethical norms.

Kevin O'Rourke, OP


1. The Anatomical Gift Act is "designed to facilitate the donation and use of human tissue and organs for tranplantation and other medical purposes and provide a favorable legal environment for such activities." cf. Sadler et al, "The Uniform Anatomical Gift Act," JAMA, 206 (1968) 2501-06.

2. P. Ramsey, The Patient As Person, New Haven, Yale University Press, 1970, p.198.

© Kevin O'Rourke, O.P.