The adequacy of existing solutions to problems about body-part ownership

Let us test the adequacy of these solutions against three scenarios.

1. The human ear ashtray: Medical students steal an ear from the cadaver they are dissecting. They varnish it and use it as an ashtray. The cadaver was donated for the purposes of medical education. Liberal though he was, the donor did not regard use of an ear as an ashtray as one of those purposes.

2. The head of an unknown person: Children play football in the street. They are using, not a football, but the head of an unknown and untraceable person which a dog has retrieved from a mediaeval cemetery.

3. The heart of a child, retained for the purposes of medical research: The heart of a six-month-old child is retained in a pot of formalin in a major research institute. The child died of congenital cardiomyopathy—which is the main research interest of the institute. The heart was removed at postmortem. The body was returned to the parents for burial. The parents’ permission was not sought or obtained for the retention. The researchers say that they did not seek permission because they knew that it would be refused, and the benefit to future patients from the information that could be derived from the heart outweighed any detriment (and they could not identify any) that would result from the heart being returned to the parents for burial.

In the ashtray case, a property analysis captures some, but not all, and not the most important part, of the culpability. Yes, the students have done something with property entrusted to them (of which, if you please, they were bailors) which they were not entitled to do. If work has been invested in the ear (for instance by the injection of latex to outline the vessels), then it may be possible to give a criminal label (theft) to the wrongness. But most of the wrongness is not that there was an inappropriate dealing with property per se, but that there was an inappropriate dealing with ‘property’ of this kind. The law fails adequately to reflect this. A sentencing judge in a criminal case on these facts would, no doubt, make some stern remarks about the disgusting behaviour of those students. It is in those remarks, rather than the arid equations of the property lawyers, that the more fundamental truth lies.

Ethically, how does one characterise the wrongness of the students’ action? Autonomy is not necessarily unable to help, but it does not do a very good job. Autonomy can reach into and beyond incapacity (for instance, in the case of advance decisions about the refusal of medical treatment) and into and beyond the grave (nobody suggests that there is anything unethical about the law of wills). But is it wholly satisfactory to say that the ashtray is wrong because the original owner of the ear would not have liked his ear to be used that way? I suggest not. If one changes the thought experiment one can see that that is the case. Even if the ear came from someone who would have thought it amusing for his ear to be so used, its use would still be regarded as offensive. The degree of autonomy's inadequacy will vary according to the facts of the case. One might contend that it does a good enough job in the context of Gunther Von Hagen's ‘Body Worlds’ exhibition.

The other Beauchamp and Childress’ principles have nothing to say. Beneficence, in this context as in all others, requires other principles to decree the content of the good that it mandates. Non-maleficence is similarly parasitic on other principles. One might say that misusing the ear makes the students callous, and that that callousness and its repercussions constitute undeniable harm, but that, again, is hardly likely to be most people's most fundamental reason for objecting to the misuse.

The use of the mediaeval head as a football can similarly be criticised in several different types of legal language. One might contend that a property-based view gives a sufficient remedy (deprive the children of their toy on the ground that it is not theirs), but surely, again, it is the type of property that the head is that makes us feel that some alternative, or at least additional, epithets ought to be used in denouncing the children's conduct.

Ethically, autonomy is arguably more obviously unsatisfactory in expressing our disapproval than it was in the example of the ashtray. We know nothing about the wishes of the head's owner: no relatives can be either consulted or offended. Beneficence and non-maleficence, by themselves, have nothing to add.

The child's heart raises other considerations. The Human Tissue Act 2005 has been flouted, but the ethical mischief here has nothing to do with the child's autonomy: the child would have been incapable of understanding a request for postmortem donation. Nor is this really about the parents’ autonomy. The parents will be upset because they were denied the opportunity to exercise their autonomy in a way which accorded with their view of how their child's body should be treated. It is the appropriateness of the treatment that is really at stake, and that, in turn, is conditioned by the parents’ view of the propriety of dealing with human bodies in general. The parents’ autonomy is distinctly secondary to the overwhelming perceived importance of ‘doing the right thing’ in relation to human beings.

Similar motives govern the researchers’ actions. They have conducted a sophisticated utilitarian calculation. That calculation could be described in terms of autonomy: more children will be kept alive (and, therefore, capable of exercising autonomy) if the heart is used. But this is strained and artificial. It seems better to say that they have figured that the net amount of human thriving in the world will be maximised by using the heart.

Dignity works where other principles do not

In each of the above examples, the only really satisfactory way of describing the real harm is by using language that looks (for many, embarrassingly) like that of dignity. Ears should not be used as ashtrays, or heads as footballs, because it is contrary to the dignity of humans.

This is an unfashionable position. Dignity has been much maligned. It is commonly thought of as being hopelessly amorphous (the name given to whatever principles give one the answer which one intuitively thinks is the right one), or incurably theological (derived from principles, such as the Imago Dei, which are not shared by most or many in the academy ).

Its proponents have often not helped its reputation, recruiting it both to advocate and object to (for instance) abortion, euthanasia and capital punishment.

‘Dignity is a vacuous concept’, wrote Bagaric and Allen. ‘The notion of dignity should be discarded as a potential foundation for rights claims, unless and until its source, nature, relevance and meaning are determined.’5 I agree with their second statement, but not with their first. The relevance is clear from examples like those above. Like it or not, dignity has to be used—there's simply nothing else. The source, nature and meaning of dignity are not as elusive as sometimes thought.

There are broadly three groups of ‘dignity-dismissers’. First there are those, like Bagaric and Allen, who say simply that the word is too ambiguous to be useful. Then there are some who, like Ruth Macklin,6 Roger Brownsword and Deryck Beyleveld,7 and Martha Nussbaum,8 who insist that dignity is essentially respect for persons or their autonomy. And finally, some (for instance, Diana Schaub9) say that, whatever it might mean, dignity is redundant since rights can do its job.

The objection of the first group melts away if dignity can be given a hard-edged meaning. The second group has to deal with the manifest inadequacy of autonomy and respect for persons to deal with situations like the ones cited above, to explain why we should have respect for persons (when we should not have, or not have equivalent respect for, for instance, a stone), and generally to show that the notion of dignity begs fewer questions than autonomy or respect for persons. The third group must tell us why humans should be accorded rights. Rights are necessarily parasitic on other principles. Rights can be derived from dignity, but not vice versa.

All three groups have to deal with the conviction (ubiquitous, except amongst professional philosophers) that dignity (whatever it is) is real, with important ethical consequences.

There is, I suggest, an account of dignity which gives a more satisfactory (or at least less unsatisfactory) way of describing the wrongness of the acts and omissions in the cited cases.10 That this is an account of dignity, rather than an account of some other scheme, can only be demonstrated hermeneutically. There is no room for that in this article.

This account is as follows.

Putting the model to work: the human ear ashtray

If the model works for the ashtray, it will work for the other problems enumerated above, and, a fortiori, for less challenging problems in bioethics, such as consent to treatment, enhancement, end-of-life decision making, confidentiality and so on.

Why is it wrong to use an ear as an ashtray? The answer, per the model, is that to do so does not promote human thriving.

There are at least five ways in which this proposition might be true. The first two are specifically to do with the person from whom the ear came. The remaining three are not. The proposition could mean that:

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.

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 of the ear are doing something that diminishes their own flourishing: it dehumanises them.

5. Expressivism: a set of rules prohibiting this sort of abuse will exhibit and entrench flourishing-enhancing respect.

I adopt all these meanings. Necessarily underpinning each is the account of dignity I have advanced. While ‘respect for persons’ might sometimes seem to do the necessary work, it requires the deeper idea of dignity to give it any content at all.

From ethics to law

This analysis fits neatly within the structure of Article 8 of the ECHR. Article 8 acknowledges the importance of respect for autonomy but, in its insistence (in 8(2)) on balancing individual self-determination against the interests of others, recognises that individual autonomy is not the whole story.

There is no doubt that, whatever philosophers think, the judges who actually have to decide cases find that dignity means something; indeed that it is foundational. In Pretty v UK, the European Court of Human Rights said: ‘The very essence of the Convention is respect for human dignity and human freedom.’15 In R (A, B, X and Y) v East Sussex County Council (No. 2), Munby J said: ‘The recognition and protection of human dignity is one of the core values—in truth the core value—of our society and, indeed, of all the societies which are part of the European family of nations and which have embraced the principles of the Convention.’16

Article 8 has been the vehicle used in Europe for the protection of rights of confidentiality and privacy,17 ,18 and other situations akin to the use of body parts. Dignity is at its core.19 ,20 There is no need to strain the notion of property, trusteeship or any other idea forged in a workshop far from the dissecting room and the ward. Indeed there is no need to use such ideas at all. One can, and should, go straight from ethics to Article 8. Any other route is convoluted and dangerous. Dignity is the only vehicle that takes the direct road .