By S. Van McCrary, Health Law & Policy Institute
On June 7, Dr. Jack Kevorkian announced that kidneys taken from the body of a man whose death he had attended were available for donation to a transplant recipient. The deceased person was later identified as Joseph Tushkowski, a 45-year-old quadriplegic from Las Vegas, Nevada, who had died by injection of an unidentified substance. It was also revealed later that the methods by which the organs had been removed were much closer to mutilation than an actual medical procedure, with the local medical examiner calling it "a scene from a slaughterhouse." Apparently, all transplant organizations that were contacted refused to accept the organs. A Michigan prosecutor reportedly remarked that Kevorkian could be prosecuted for violating a corpse, but that charges were unlikely because Tushkowski's family had refused to cooperate.
Serious ethical and policy issues were raised subsequently by transplant organizations, physicians, and bioethicists, including: (1) whether proper procedures for sterility and preservation of the organs were followed; (2) whether the kidneys could have been damaged by the toxic effects of the lethal injection; (3) whether patients might be pressured to end their lives if money would be exchanged in the organ donation process; and (4) whether there are negative policy implications from the potential development of a black market in organs.
Although the medical issues remain important, they take a back seat in this debate to the ethical and legal perspectives. The foreseeable scenario of unofficial entities or persons supplying a strongly-growing demand for organs after assisting the donor to commit suicide is replete with numerous conflicts of interest, particularly among them the question of whose best interests does a physician really serve in such contexts. The interests of a suffering patient who wishes to die and a patient seeking a scarce organ are too conveniently complimentary to be allowed to coexist as a unified event. In fact, avoiding the commodification of organs for monetary gain is a point on which all bioethicists agree. Even if assisted suicide is determined an acceptable practice in some jurisdictions, to permit it to be entangled with the procurement of organs would irrevocably corrupt the organ donation process. Recognizing the potential for conflict of interest and the perverse incentives that might occur, in many jurisdictions the standards of organ donation require that separate physicians pronounce death and remove the organs. Legislatures in states contemplating legalization of assisted suicide might want to consider the merits of explicitly excluding patients who die under such statutes from becoming organ donors.
Some bioethicists even suggested that linking organ transplantation with assisted suicide has been Kevorkian's central goal from the beginning of his notoriety. Whether or not this is correct, such linkage clearly is morally unacceptable. In the wake of the offer of organs, numerous persons and organizations began rapidly distancing themselves from Kevorkian's practices. A Michigan organization, which has been active in promoting a state ballot initiative on Physician Aid in Dying, asked Kevorkian to stop his efforts to harvest organs and accused him of hurting their campaign. More dramatic was the action of Michael Odette, one of Dr. Kevorkian's attorneys, who filed a request to withdraw from defending the doctor in an assisted suicide case, saying that Kevorkian's offer of organs "went too far."
Kevorkian himself apparently admitted that the odds the kidneys would be used for a transplant were "nil." This statement, combined with the apparently crude methods of organ removal, suggests that motivation for this incident was not altruism but rather a bizarre publicity stunt. Such an activity is in keeping with some of the Kevorkian's lesser publicized tendencies. For example, in his 1991 book, Prescription Medicide, The Goodness of Planned Death, Kevorkian suggested numerous macabre and immoral practices, for example "terminal human experimentation"--in which condemned prisoners would be allowed to volunteer for medical experiments that would begin while they were alive but which ultimately were certain to result in death.
Arguably, Dr. Kevorkian's original assisted suicide did the nation a significant service by stimulating much-needed public debate on issues of alleviating suffering near the end of life. His latest stunt, however, suggests that his role in this debate is finished. The U.S. Supreme Court's decisions in 1997 have allowed the "laboratory of states" individually to evaluate the merits of a public policy in which terminally ill persons could be allowed to end their lives. Oregon is leading this effort and several other states are considering similar proposals. Although there are strong arguments on both sides, it is clear that this debate calls for application of caution and reason instead of the unacceptable actions of Kevorkian.
As a facilitator of patients' deaths and related publicity stunts Dr. Kevorkian perseveres, but any shred of moral authority he may have once had has long been exhausted. The public debate weighing the risks and benefits of physician assisted suicide should proceed without him.