A Strong Consequentialist Argument for Steve Jobs’ Liver…But Is It Right?

Steve Jobs and friend

Back in June of 2009, when “Ethics Alarms” was but a twinkle in my eye, there was a momentary controversy when ailing Apple CEO Steve Jobs was able to use his enormous wealth to land on multiple regional organ transplant lists, thus vastly improving his chances of getting a precious liver transplant in time to save his life. The California native ultimately got a Tennessee liver, but critics cried ethics foul. The organ transplant distribution system is not supposed to be based on wealth: otherwise, why not just auction off livers to the highest bidders? Because most insurance companies won’t cover multiple listings, only the richest patients can afford to employ this strategy, meaning that a system that is supposed to be means-neutral favors the wealthy after all.

According to the Organ Procurement and Transplantation Network, about 16,000 people are currently waiting for a liver in the United States. In the year before Jobs got his transplant, 2008, 1,481 people died waiting for a donor liver. The national average waiting time for a transplant is about a year, but it can average as little as a few months at some centers. Jobs used his wealth and the system to make certain he wouldn’t die waiting. You can’t say a man is unethical to use his wealth to survive when the system permits it…but should it permit it? “[Multiple listing] is not for anybody but the rich… a practice some would say is unethical,” said Arthur Caplan, co-chair of the United Nations Task Force on organ trafficking and chair of the department of medical ethics at University of Pennsylvania. He is among the some, as Caplan feels the practice “undermines the fairness of the listing, in my opinion.”

But now I have stumbled upon an argument that what Jobs did it isn’t unethical, from Richard Ludlow, Founder of Academic Earth. You can read his whole piece here, but this is the meat of it:

“As counter-intuitive as it sounds, Jobs’ use of his wealth to be listed in multiple areas led to a fairer distribution of livers than would have occurred otherwise.

“In the US, all patients on the liver transplant list are assigned a score (based on objective medical criteria) called a MELD which essentially indicates how much they need a transplant at a given time. A patient with a score of 40 will soon die without a transplant, whereas one with a score of 10 can wait a while.

“… Some regions have a relatively greater supply of donors than needy recipients. Thus, someone in Florida can get a transplant with a MELD of just 18, while someone in California ends up waiting until they have reached a score of 30. California recipients remain sick for longer and have worse post-transplant outcomes, simply because of the arbitrary factor that they live in a different state.

“Registering on a hospital’s transplant list requires an expensive series of tests, and …wealthy people like Jobs can pay to be listed at multiple hospitals in multiple regions. Jobs is still only allowed to receive a transplant if he is the sickest eligible person in a given region where he is listed. In his case, he ended up receiving a transplant in… one of the states with a relatively higher supply of organs than California. The impact of this was likely that someone in Tennessee with a score of 20 had to wait a bit longer to receive a transplant, while someone else in California besides Jobs with a score of 30+ was able to receive a transplant sooner.

“The argument that Jobs’ actions were unethical stems from the assumption that they gave him an unfair advantage over other Californians. However, his actions actually helped everyone else on the California list (because he was no longer ahead of them), and just put him on the same footing as someone in Tennessee.

“His use of his wealth helped correct an inefficiency in the system, and led to livers being allocated based on medical need instead of geography.”

This is a pure consequential argument, but a mighty strong one. Though Jobs is using his wealth to game a distribution system that is not supposed to favor wealth, Ludlow argues that the manipulation actually works for all concerned, eliminating an inefficiency that results from the system’s being regional rather than national.

It does involve a little ethics sleight of hand. Imagine there are two lines for tickets. Line A is 50 people long and is moving at a snail’s pace. Line B is half as long, and moving twice as fast. Ludlow’s argument boils down to saying that if I am tenth in line A, and I leave it to cut into line B, jumping into 10th in line there, the fact that I’ve increased over-all efficiency justifies my making the sixteen people behind me wait longer for their ticket, because I’ve also allowed the 40 people who were behind me get to the front of the line a little faster because I’m no longer there.

I see two problems with this:

1. What if the box office runs out of tickets after I get mine? Then the one in line B behind me didn’t merely lose one place in line—he lost everything. If there is a shortage of livers after Jobs gets his transplant, the person who lost both a place in line and a shot at the last available liver isn’t going to appreciate the additional “efficiency.”

2. True, Jobs cutting into the line in Tennessee benefits the California list, but he wouldn’t have to disadvantage any potential Tennessee organ recipients to do that. They would benefit from him leaving the list sooner no matter what situations bring it about, some of which would be unfortunate for Jobs.

I don’t want to be uncharacteristically wishy-washy about this. Still, I can’t fault Jobs, whose life was (and, sadly, still is) in peril, for doing everything the rules permit to locate a suitable liver as quickly as possible, even though it could be called using a loop-hole, and is contrary to the spirit of the distribution rules. Ludlow’s defense, nonetheless, has the flavor of a rationalization; essentially he is arguing that the system is flawed anyway, so it is justifiable to manipulate it. It is true that if everyone had the resources to do what Jobs did, the regional system would become a national system, and the results would be fair. We know that will never happen, however.

We can agree, perhaps, that the current system of regulating organs for transplants is inefficient and unfair, and yes, I need to examine the ethical issues in a careful post. That doesn’t mean that it is ethical for the rich to have an advantage over the poor, because only they have the resources to exploit the system’s weaknesses.

2 thoughts on “A Strong Consequentialist Argument for Steve Jobs’ Liver…But Is It Right?

  1. A friend of mine offers this solution: During nursing school, he attended a Nursing Ethics course where one of the assignments called for a deliberation on the fairness of an organ transplant donor list. The cases were argued back and forth, in class and out, without intervention from the two instructors. At the end of the term, the students found themselves deadlocked into three opposing groups. They went to the teachers for The Right Answer … which was, as he remembers, that each group had come up with a process that was considered ethical in a different state. Each could be considered ethical, but none fair. The only really fair list, they said, would be first-come-first-serve.

    Irrelevant, perhaps, that the course was not part of the nursing school curriculum but obligatory on behalf of the Jesuit university with which it was was affiliated. The instructors were nuns.

  2. “First come, first served” seems to be a valuable tenet. It has its flaws, but absent that we are on the slippery slope of trying to determine the VALUE of the life to be saved. Will Steve Jobs potentially be more important historically than the alcoholic mother who may have in her family one or two potential Nobel Laureates? Impossible to answer.

    A national, not state-based, system seems best at this time. Meantime, the various “private” organ donation systems should be of higher concern. Why, for example, did Mickey Mantle get a new liver when it was diagnosed. in advance, that he had cirrhosis, Type C hepatitis, and a rare form of liver cancer? His new liver bought him about a year; it could have given someone else back a whole life. I hold no ill feelings toward Mantle. But wasn’t this a liver wasted?

    I haven’t signed an organ donor card because as far as I can tell some Mickey Mantle or Tom Cruise is waiting in the wings waiting for me to die. I’ll leave it to my family (poor them).

    But this is the direct result of a general insecurity about the system and its fairness. Where are the bioethicists when we need them?

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